LI CHUN PONG RAYMOND v. LI MAGGIE HANG YUNG

DCCJ 367/2020

[2024] HKDC 1211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 367 OF 2020

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JUDGMENT

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Introduction

1.  This is an absurdly acrimonious dispute between two siblings. The plaintiff (“P”) is a younger brother born in 1964. The defendant (“D”) is an elder sister born in 1960. By the time they gave oral evidence before me in April 2024, they were aged 59 and 63 respectively.

2.  The dispute between these siblings began with their purchase of a residential unit known as “Unit D, 29/F, Block 1, La Costa, No. 8 Po Tai Street, Shatin, New Territories” (“the Property”), registered as owned by P and D as tenants-in-common, each having a 50% interests, since 2005. Curiously, these siblings actually agreed they were and remain co-owners, both at law and in Equity. The dispute was really about (1) their respective percentage of beneficial ownership; (2) the usage of the Property; and (3) some rather disturbing acts alleged to have been perpetrated by P and said to be tortious, and thus unlawful, acts of intimidation and/or harassment.

3.  Having read all documents including counsel’s exceptionally helpful written submissions, heard 4 days of oral evidence, and listened to counsel’s equally helpful oral submissions, I decided to grant the reliefs set out towards the end of this judgment. In gist, on the primary issue, I ruled in D’s favour. I shall explain how I came to that decision.

Background Facts

4.  The background facts are incredibly sad. In fact, when D was giving evidence before me and asked to retell some of those facts, she cried uncontrollably, as did at least two persons in the public gallery. I shall only set out so much of such background facts as would be strictly necessary to ensure the reasoning in this judgment can be fully and properly understood. I shall otherwise seek to preserve the privacy of at least some of the people involved.

5.  D was born in Hong Kong. She had one elder sister, one elder brother, two younger sisters, and one younger brother. In other words, D ranked third amongst all siblings. P ranked fifth[1].

6.  From 1960 to 1982, D grew up living in a public housing unit in Choi Hung Estate. D moved out to live with her elder sister in 1982[2].

7.  D got married in November 1987 when she was 27[3]. By June 1991 when she was 30, D migrated to Sydney, Australia, with her husband, after which they gave birth to a daughter called Nicola. From 1994 to 1995, Nicola and D followed D’s husband to Japan and stayed there, by reason of work arrangements. In around 1995, D’s husband was transferred back to Hong Kong, so the family moved back. All was well until January 1998, when D’s husband was diagnosed with Stage IV liver cancer. D’s husband wished to return to Australia for treatment, so the whole family moved back to Australia. On 14 April 1998, D’s husband very sadly passed away when he was only 43. On that day, D was 37, and Nicola was only 5[4]. Overnight, D became a widow, and also a single parent. D and Nicola were all alone in Australia, a place they hardly knew at the time, though D’s father and a former colleague of D visited them briefly[5]. When D gave evidence about this before me, D said, and this was sensibly unchallenged, “嗰陣時我真係好忙… 我哋搵棺材都唔知去邊度搵” [English translation: “Back then I was really busy… we had to find a coffin but we did not even know where to go to find one”][6]. However, D decided that D and Nicola should stay in Australia since D believed[7], and this was also sensibly unchallenged, that Australia’s education system would be better for Nicola. Fortunately, D’s husband had two life insurance policies and the payouts were sufficient to allow D to take care of Nicola on a full-time basis, which D did. It was for these and other sad reasons that D and Nicola ended up staying in Australia most of the time, only visiting Hong Kong occasionally.

8.  In 2005, for very hotly disputed reasons, P and D became co-owners of the Property. The solicitor who handled that transaction was one Mr Ho Kim Hung (何劍雄律師) (“Solicitor Ho”), who was then a partner of Rowdget W Young & Co Solicitors (楊振文律師行). Curiously neither party called Solicitor Ho as a witness, even though either P or D could have done so. I therefore had no opportunity to hear or receive evidence directly from Solicitor Ho.

The Witnesses – Overview

9.  The following witnesses gave live evidence at the trial, in this order of appearance:-

(1)  P;

(2)  Carmen Li, the youngest sibling (“Carmen”); and

(3)  D.

The Law – Analyzing Evidence

10.  There is no real dispute as to how I should go about analyzing the live oral evidence. What was said by DHCJ Thomas Au, as Au JA then was, in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 (§53), and what was said by DHCJ Paul Lam SC, as the current Secretary for Justice then was, in Taishin International Bank v QFI Limited [2020] HKCFI 2116 (§13), were particularly helpful. As always, I am guided by those dicta. I am also fully aware of what was said in Phipson on Evidence (20^th Edition, Chapter 45, including its §45-24), and I considered that as well.

11.  I should mention that on 30 April 2024, in his oral closing, Mr Keith Tam, counsel for P, addressed me on the agreed objective fact that P had dishonestly lied to D (his own elder sister), or made false assertions to D (his own elder sister), on at least two matters, one about a lock and one about a tenant, in circumstances where P was not under oath, and Mr Tam’s submissions to me went as follows: -

“Well… Your Honour would be familiar with the principles on assessing credibility… If you take the plaintiff from when he was 5 years old to 60 years old, who hasn’t told a lie? In which case, no one is incredible in this case. In this case, the credibility must be assessed against his evidence in court, in writing and in other -- against inherent probabilities and so on… ultimately it is his performance in court and in writing which this court has to judge his credibility against.”[8]

12.  Partly in response to that, Mr Tommy Cheung, counsel for D, asked me to make good use of my “visual benefit”[9], in the sense of having been able to visually observe P’s reaction under cross-examination.

13.  By reason of the above, I should mention I am fully aware of, and I have reminded myself of, the case law on demeanour and lies.

14.  As I have mentioned in Mohammad v Tam [2024] HKDC 912 (at §§6 to 11, per DDJ Kenneth KY Lam), in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (at §§36 to 38), Bokhary PJ said this: -

“… I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence. It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve. In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour…”

15.  The above was applied in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514 (at §63, per DDJ Kenneth KY Lam).

16.  In EPI v Symphony plc [2005] 1 WLR 3456 (at §§74 & 75), Peter Smith J said this: -

“…I add a few of my own precautions. (i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness's evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie. (iii) Third, I regard it as essential that witnesses are challenged with the other side's case. This involves putting the case positively. This is important for a judge to enable him to assess that witness's response to the other case orally, by reference to his or her demeanour and in the overall context of the litigation. A failure to put a point should usually disentitle the point to be taken against a witness in a closing speech. This is especially so in an era of pre-prepared witness statements. A judge does not see live in-chief evidence, thereby depriving the witness of presenting himself positively in his case. None of the above or the helpful assistance provided by the reported authorities is necessarily determinative. All of them provide factors to enable a judge to come to a particular conclusion about the acceptance or rejection of a particular person's evidence.”

17.  The above was applied in Lam Rogerio Sou Fung v Tan Soon Gin George (HCA2576/2005, 5 May 2011) (at §41, per Chu J).

18.  Even though I am a professional judge in a civil trial, and not a juror in a criminal trial, I have still warned myself against any improper use of lies, and reminded myself a litigant may lie for a variety of different reasons, and that lies usually affect credibility only. This was emphasized by Chan PJ in HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113 (at §§31 & 32). Given the large variety of different reasons why a person would lie, a person’s lies should always be treated with caution.

19.  In particular, as I had mentioned during the trial itself[10], I was fully aware of the possibility of a lie being nothing more than a “white lie”, i.e., a false assertion uttered with the best of intentions. A dim sum lady in a Chinese restaurant may ask a male customer 「靚仔，食唔食燒賣呀？」[English translation: “Handsome boy, do you want to eat some siu mais?”], when the dim sum lady actually considered the customer hideous looking[11]. On one view, there is nothing wrong with this. A kind-hearted doctor may also tell a dying patient he would be fine, knowing full well that is untrue. On one view, there is nothing wrong with that either. Lies can also be told as jokes, even when they are not at all funny. People also bluff in drinking games, card games, mahjong and various other situations. The possibilities are endless. Each situation is different. Each situation must be examined cautiously.

20.  As in Mohammad v Tam [2024] HKDC 912 (at §12, per DDJ Kenneth KY Lam), I have, in this case, similarly considered the entirety of P’s evidence, including all contents of P’s witness statement (“P’s WS”), all contents of P’s supplemental witness statement (“P’s SWS”), and P’s oral evidence. I cross-checked P’s evidence with inherent probabilities and all other pieces of evidence adduced at the trial. I have carefully observed P’s demeanour (including his long pauses before some of his answers) and approached it with great caution. At the end of the day, I came to the firm view that P’s evidence was wholly unreliable, as a result of which I rejected the entirety of P’s evidence, except those parts which were admissions, or were independently proved by various other pieces of evidence, for the full reasons set out below.

The Evidence Of P

21.  I found P’s evidence wholly unreliable.

22.  Firstly, P’s case on the alleged common intention vis-à-vis the beneficial interests in the Property is inherently improbable. P admitted he worked for a telecommunication company since 1993 and then a bank since 2004[12]. One would have thought from both roles he must have realized the importance of proper documentation. Yet P’s case is that he had an express oral agreement with D on the beneficial interests in the Property which was fundamentally different[13] from the public written record duly registered in the Land Registry, but P did not see the need to have it recorded in writing in any way or form out of trust[14]. Whilst this may be probable for someone who never worked for a bank, it is improbable for someone who did.

23.  In my view, it is substantially more likely that the entirety of P’s case on the alleged common intention is just a dishonest lie fabricated by P out of P’s greed and/or out of P’s desire to harm and hurt D (after they fell out with each other)[15].

24.  Secondly, when P was cross-examined on the contents of D’s WS, P’s oral answers under oath went like this[16]: -

“問：… 其實被告人都有提出過，其實喺單位入面有其他爭執嘅事情嘅，咁呢個你知道被告人係有相關嘅案情吖嘛？

答：唔知道，我冇睇佢啲嘢。

問：哦，你冇睇佢啲嘢，哦，唔緊要，咁或者我都帶你去睇一睇。去番之前ABC個文件冊吖，咁亦都係去最後一個分頁，我係帶你去睇被告人嘅證人供詞。咁喺第52段。

答：52段？

問：係，喺63頁。

答：係咪呢個file，ABC？

問：係，ABC，係，最後嗰個分頁，第63頁，右上角。

答：63頁。

問：你話你冇睇過被告人嘅證人供詞，係咪？

答：冇，我英文唔好嘛。

問：有冇人解過畀你聽？

答：都冇。

問：好，你記住呢個答案。”

25.  P’s answers were lies because in P’s SWS, signed by P on 30 August 2022, P explicitly referred to D’s WS and responded to its contents section by section, in a very comprehensive manner. Since P responded to such contents section by section, P must have read D’s WS himself, or been shown and explained its contents. In fact, §3 of P’s SWS said both events occurred, and P had previously confirmed the truth of that under oath. The falsity of P’s answers under oath, or the internal inconsistency of P’s sworn oral evidence, was obvious. In my view, that was due to P’s dishonesty as a witness, or P’s indifference towards accuracy, or towards telling the truth. Either way, that made P’s evidence wholly unreliable[17].

26.  Thirdly, at the suggestion of Mr Tommy Cheung, counsel for D, I made good use of my “visual benefit”[18]. I was able to visually observe P’s reaction throughout the entire duration of his live oral evidence before me, and the way P reacted to questions in front of me clearly showed to me P was either thoroughly dishonest even when giving evidence under oath, or wholly indifferent towards accuracy or telling the truth. That applied to the entirety of P’s live oral evidence before me, but the best example is this part of his evidence[19], the visual image of which I can still vividly recall: -

“官：證人，喺你未離開證人台之前，我想我趁我記得都問咗你呢一樣先，麻煩你揭番去文件冊ABC嘅C66頁吖，C66頁就係你家姐嘅證人口供，我想你睇番第63段，我哋其實今朝睇過㗎喇，咁你都記得63.1嗰段中文喇，咁你今朝就畀大律師問過話--咁你呢度講，「我把鎖就換咗」，你個講法係話冇嘅，其實你冇換鎖嘅，所以你誇大咗，你係「戲言」，你嘅用字係，你記得嘛？

答：記得。

官：咁但係我有少少唔理解，我想確保我理解正確先至離開法庭，即係「我把鎖就換咗」呢六個字又係虛假陳述嚟㗎喎，因為假㗎嘛，係咪？

答：虛假陳述？

官：你話「我把鎖就換咗」，但係其實事實係冇嘅，咁咪假囉，係咪假嘅？假嘅？

答：假嘅。

官：咁點解你會同自己親家姐講嘢講假話，唔講真話呢？

答：講假話？因為我收到何律師封信，我好唔開心、好嬲，因為佢內容係挑釁緊我。

官：挑釁就講虛假嘅嘢呃人？即係你個取態係咁樣嘅？

答：挑釁講虛假嘢呃...

官：即係我問你點解講虛假嘅嘢吖嘛，你個答案就係因為佢挑釁你，咁你個--即係當時喇，唔好講而家，2019年3月30號嘅時候，你係咁樣處理事件嘅，即係家姐挑釁你，你就呃番佢咁樣嘅？

答：我誇大其辭啫。

官：唔係喎，有換鎖就有換鎖，冇換鎖就冇換鎖，事實嚟㗎喎。

答：冇錯。換鎖。

官：一係有，一係冇。

答：冇。

官：咁唔係誇大。唔係話「我換咗個鎖，大過地球㗎。」唔係咁樣誇大法喎。

答：唔。

官：即係如果你話你換咗個鎖係5鈫銀咁大，你又講到地球咁大，咁就叫誇大啫。

答：唔。

官：直情係冇換，你有個虛假陳述話換咗，呢個係一個大話，係不誠實㗎喎，點解呀？點解講大話呃自己家姐？

答：點解講大話呃自己家姐？

官：唔。

答：咁佢封信挑釁我，咁我咪咁樣隨意講番畀佢聽囉。

官：哦。即係都係咁嘅，有人挑釁你，你就覺得你可以、應該、合理地講大話呃佢，係冇問題嘅...

答：因為我哋...

官：...呢個係你嗰個取態？

答：我哋幾兄弟姊妹溝通、嗌交都係咁樣嘅，由細到大。

官：唔係，其他嘢唔好講喇，同埋冇理由講6歲啲嘢㗎，我哋唔好講嗰啲喇，我哋講番2019年3月30號你呢一個咁樣樣嘅訊息，係咪真係咁樣？挑釁你，你就覺得不誠實地講大話呃佢係可以嘅，冇問題嘅？你到而家都覺得當時個做法冇問題，冇換鎖、講大話呃佢話換咗鎖係冇問題嘅，係咪咁樣？

答：當時咁諗係嘅。

官：咁而家呢？

答：而家咁諗係唔啱嘅。

官：哦，咁但係點解你啲證人口供好似冇講過，你咁樣講你覺得自己唔啱？

答：呢啲係佢對我嘅指控吖嘛。

官：係囉，咁你個證人口供就係回應人哋嘅指控吖嘛，所以先打官司之嘛，咁點解你從來冇喺證人口供度，「唉，其實想當年講咗一句咁嘅嘢我都好後悔，講大話呃人係唔啱嘅。」你冇咁講過㗎，係咪？我就係想知點解囉，係咪你而家都覺得講大話呃人係可以接受嘅行為？

答：而家講大話呃人係唔可以接受喇，係咪？

官：咁點解你從來都冇咁樣解釋過呢一段說話？冇喺證人供詞嗰度話「對唔住，我係唔應該講大話呃我家姐。」冇喎，點解冇嘅？

答：我覺得呢段錄音呢，我覺得係唔重要。

官：佢告你呢段錄音喎，點解唔重要呀？呢個係佢告你，狀紙有寫。

答：唔。

官：係佢要求賠償嘅基礎嚟㗎喎，點解唔重要呀？即係你可以覺得唔重要，但係我想知點解囉，因為我唔...

答：因為成件事有因由㗎嘛，佢就攞咗中間，斷章取義嚟擺上去。

官：係。

答：唔。

官：咁所以就唔重要喇？

答：係。”

27.  I was, of course, fully aware it was no part of my judicial duty to pass moral judgment on P’s actions. I said so myself[20]. Whether it was despicable for P to have dishonestly lied to D in order to make her unhappy was never by itself relevant. However, the exact manner in which P reacted to my questions was relevant to my assessment of P’s credibility, and I can take that into account with caution. As Bokhary PJ had said in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (§§36 to 38), demeanour has a role to play. The way P insisted, when giving sworn evidence before me, that the 30 March 2019 WhatsApp Voice Message, which had in fact been explicitly pleaded as the factual basis of D’s counterclaim against P[21], was in P’s view “unimportant”, is particularly shocking. It was a pleaded counterclaim by D against P, verified by D with a Statement of Truth, and P by his own pleading denied what he did amounted to committing the tort of intimidation and/or the tort of harassment[22]. P further addressed it in P’s WS[23]. The fact that P then treated this serious pleaded issue with immense disdain when talking about it under oath was in my view a sign that P never took his legal obligation to tell me the truth seriously.

28.  There were, of course, many more instances during the course of P’s oral evidence before me[24] where the visual image, such as P’s facial expression of nonchalance, contempt and scornfulness demonstrated to me P was dishonest or wholly indifferent towards accuracy or telling the truth, but just stating the above should be sufficient for present purposes.

29.  Lastly, D also gave live evidence before me, and various parts of D’s evidence directly contradicted P’s evidence on the same issues. For those parts, if D’s evidence was the truth, it necessarily meant P lied to me. As I shall further explain below, after careful consideration, I accepted D’s evidence as the truth. That being the decision, I had of course also rejected P’s evidence at the trial on this further or alternative basis.

The Evidence Of Carmen

30.  I found Carmen’s evidence generally irrelevant to the point of being frivolous, scandalous or abusive. Whilst at the end of her evidence[25] I did politely thank Carmen for her time, and I thank her for her time again here, with respect I do not find her evidence particularly helpful, and I place no weight whatsoever on such evidence. I shall explain.

31.  Firstly, Carmen signed a witness statement on 22 August 2021 (“Carmen’s WS”). There was nothing of significance in it. Carmen had no first-hand knowledge of any material issue in this litigation. Instead of providing useful information on things which mattered, Carmen’s WS was plainly just an attempt to vent her hatred and to vilify, besmirch, disparage, asperse, traduce and “diss” (數臭)[26] a person she disliked, namely, D, in a highly inappropriate and abusive manner.

32.  For example, §26 of Carmen’s WS described in minute details an alleged incident in March 2019 which was supposedly a petty and small-minded dispute over some wedding expenses incurred over 32 years ago in the year 1987. Mr Keith Tam, counsel for P, sensibly never even attempted to say I (or indeed any person) should somehow spend time pondering over §26 of Carmen’s WS. The irrelevance, and the pettiness, of such evidence were shocking.

33.  Another good example is §§27 to 29 of Carmen’s WS, which described in minute details why, according to Carmen at least, Carmen was supposedly a more filial daughter. Carmen described yet another petty and small-minded dispute over a contribution of HK$500 per month. Mr Keith Tam, counsel for P, never attempted to say I (or indeed any person) should spend any time at all pondering over a HK$500 dispute. That was sensible. The irrelevance, and the pettiness, of such evidence were shocking.

34.  Secondly, when Carmen started her oral evidence she actually attempted to elaborate on the aforesaid irrelevant and petty evidence, and thus waste even more time[27]. When Carmen started talking about which of the siblings did, and which of the siblings did not, assist their father brush his teeth[28], I saw the need to intervene so that I could understand Carmen’s evidence properly, and so that I could discharge my judicial duties to give effect to the underlying objectives set out in Order 1A rule 1 of the Rules of the District Court (Cap 336H), and this exchange took place: -

“官：證人，我反而有嘢好想知嘅，咁麻煩妳幫一幫我。妳知唔知呢單官司係打緊咩嘢？

答：共識、物業。

官：共識、物業。咁被告人，即係你哋個三家姐，李杏容，有冇幫阿爸刷牙，關咩嘢事呢？

答：即係佢係漠不關心囉，即係妳喺老人院探訪...

官：即係一個人--係，唔。

答：...唔係話凈係探訪，唔係凈係睇佢㗎嘛，唔係凈係同佢傾偈㗎嘛，佢覺得好似凈係同佢傾偈咁樣囉，其實唔係㗎，要畀多啲愛心出嚟㗎。

官：即係--就假設妳講嘅嘢百分之一百係真嘅，咁又同個業權有咩嘢關係？

答：我想帶出就係佢個人嘅性格、個品行問題囉。

官：品行差都可以...

答：自私囉。貪心囉。貪錢囉。

官：係。明。好。我當妳啱先喇。當佢係地獄使者。魔鬼嚟嘅。佢係好邪惡嘅。係好不孝。簡直係應該--如果喺清朝嘅，浸豬籠，咁樣先算。當妳全部係真嘅。咁都可以擁有物業㗎，妳同唔同意？幾邪惡嘅人都可以有樓㗎嘛。咁所以佢有幾邪惡關我咩嘢事呢？

答：咁我只不過喺個陳述書度講佢個性格品行吖嘛因為...

官：係喇。就係想問妳囉。點解講佢個性格品行？

答：就係佢個人有問題囉。

官：咁又點？

答：自私。貪心。貪錢囉。

官：咁又點？

答：漠不關心囉。就係咁。

官：係。咁又點呢？即係我唔明喇。咁又點？

答：因為頭先嗰位張大律師問吖嘛，咁我咪照講番出嚟。

官：唔係。我知。我睇晒喇。我唔明嘅就係，咁同佢有冇擁有物業有乜關係？

答：有乜關係？

官：係，我就係問妳有乜關係，如果兩者有關係。

答：我咪話佢貪心囉。

官：咁又點呢？

答：即係話明個業權呢，應該係有個共識㗎嘛。

官：貪心同唔貪心都可以有共識㗎？即係有乜關係呢兩樣嘢？即係我唔明呀，所以問妳。

答：其實我都唔係好明你哋想問啲乜嘢。

官：噢，咁妳寫呢啲嘢出嚟個用意就係--即係講得粗俗啲，數臭佢，係咪呀？

答：我唔係數臭佢呀，我係講factual嘅事實，佢...

官：唔係。數臭都可以係真嘅。唔係--我冇話...

答：佢係有做過啲嘢吖嘛。

官：係。我冇話妳假。妳聽清楚啲。我意思係，妳寫呢啲嘢出嚟，唔係協助緊我去決定物業擁有權嘅百分比，而係話佢係一個壞人。就係咁樣，係咪？呢個係咪妳寫呢啲嘢嘅意思？因為我聯想唔到兩者之間嘅關係，即係就算魔鬼本人行入法庭，佢都可以話「層樓我嘅」，咁我哋都係照跟法律去判嘅之嘛，即係我哋唔會話佢係魔鬼就冇權訴訟呀，咁樣，咁所以我唔係好明，妳份證人供詞，成份，愛嚟做咩嘢，所以我想理解多啲，即係妳講呢啲嘢，話佢，好差呀，地獄呀，不孝呀，咁啱晒又如何？

答：佢貪心囉，嗰個業權嚟講，其實嚟講，據我所知，佢凈係--聽我阿爸講呢，佢凈係攞$1,000,000出嚟啫，多一分多一毫佢都唔願意攞嘅。

官：係。

答：咁之後Raymond就自己負責晒所有嘢。咁其實講真吖，end up到最後，我唔知佢之後點樣處理佢喇，佢依然都要攞即係五、五咁樣喇，50個per cent咁樣，即係其實佢對嘉華星濤灣佢又冇付出過，又冇貢獻過，只有攞「一球嘢」出嚟，咁只不過我呢度嘅意思即是話佢個人嘅性格係咁貪心、係咁自私。

官：係。凈係咁啫？

答：喀。

官：哦。明白。

答：即係妳冇可能...

官：咁我清楚喇。

答：...妳嘉華星濤灣妳只有攞$1,000,000出嚟，其他嘅嘢即係佢冇付出到，即係譬如交呢個一季季嗰啲呢，嗰啲叫咩嘢呀？嗰啲...

MR CHEUNG：啲差餉。

答：係，嗰啲差餉嗰啲，佢又冇畀過，係咪先？

官：唔。

答：即係at least呢啲喇，同埋管理費佢又冇畀過，咁就話要愛咁--50個 per cent，即係其實我呢份證人供詞裡面都可以反映出佢個人個性格係咁霸道囉。

官：唔。

MR CHEUNG：唔。

官：清楚。理解。咁我而家明白喇。謝謝。唔該。Yes。”

35.  Just as it was no part of my judicial duty to pass judgment on the general morality of P as a person[29], it is no part of my judicial duty to pass judgment on the general morality of D as a person either. We are not here to decide who should go to Heaven, or who should go to Hell. Neither counsel suggested otherwise. Whilst I am sure there could be some strange cases out there where it would be crucial for the trial judge to find out who assisted in teeth-brushing and who did not, in my view this case is not such a case.

36.  Given the above, I place no weight on Carmen’s evidence.

The Evidence Of D

37.  I found D’s evidence more reliable.

38.  Firstly, D’s case on the common intention between P & D vis-à-vis the beneficial interests in the Property is inherently probable.

39.  In gist, D’s case, as set out in §33 of D’s WS (signed by D on 23 July 2021), is that in the afternoon of 29 September 2005 (“the Meeting Date”), at Solicitor Ho’s office in Hong Kong, P & D (together with their father, and a very young Nicola) met Solicitor Ho in person, and all of them had a face-to-face discussion. Solicitor Ho suggested “50:50 split” and no person objected. The common intention between P & D must therefore be a 50:50 split, exactly as proposed by Solicitor Ho, and never objected to by any person. The formal legal documentation which followed[30] accurately reflected that common intention. D’s case is straightforward, logical, and very likely to be true. I agree entirely with D that logically speaking, if the 50:50 split mentioned by Solicitor Ho was somehow wrong, inappropriate, or otherwise contrary to what was in P’s mind, P would in most likelihood have raised an objection there and then. The agreed fact that P stayed silent strongly supported D’s case that the common intention between P & D was a 50:50 split of the beneficial interest. That would by itself, without more, be a strong enough reason for me to accept D’s evidence as more reliable, as I do.

40.  Secondly, while D had obvious disclosure inadequacies and I shall return to this subject below, the various contemporaneous documents which had been placed before me do support D’s oral evidence.

41.  By way of example, D500 was an Assignment of the Property dated 3 October 2005. It described P & D as “Tenants in Common in equal shares”, in line with D’s oral evidence that that was the common intention.

42.  Another good example is D130, which depicted a Ma On Shan Police Station report card with report number 19004964. It supported D’s evidence that P had done something unlawful to her, so much so D thought she must inform Ma On Shan Police Station of the incident, which she did in the end[31].

43.  Thirdly, I visually observed D’s reaction throughout the entire duration of her live oral evidence before me and the way D behaved in the witness box clearly showed to me D was honest, spontaneous and genuine, giving evidence in a natural manner, and caring deeply about accuracy, and being truthful. In fact, D was one of the most honest and natural witnesses I have ever seen in my whole life.

44.  Fourthly, whilst Mr Keith Tam, counsel for P, doing the best he could in the circumstances, had diligently drawn my attention to various aspects of D’s live oral evidence which according to Mr Tam were far from satisfactory, after cautious consideration I came to the firm view that none of them was material. I should, and I do hereby, set out the reasons.

45.  To start with, at §§2 to 4 of P’s Written Closing, Mr Tam, on behalf of P, criticized D’s evidence by boldly suggesting it would somehow be “contrary to common sense and inherently improbable” for the parties to have agreed to a 50/50 beneficial interest division when they “knew from the outset that P’s contributions to the Property would vastly outweigh that of D’s”. This particular assertion appeared to me to be so misconceived I raised a written requisition, inviting counsel to address me on the assertion further, in these exact words: -

“With reference to §§2, 10.2 and 59 of P’s Written Closing, why should a contribution of HKD 1M back in 2005 be equated with a contribution of HKD 1M in 2024, when that would make no sense whatsoever when things like inflation, compound interests over 19 years, potential investment returns, and the money’s true opportunity costs are taken into account? This point had in fact been explicitly mentioned in §36.2 of D’s WS, filed as early as on 23 July 2021 so that P had more than adequate notice that this point would be taken. Putting it differently, if one were to say the payment of a larger total sum spread over a very long period of time is economically more advantageous than the payment of a smaller sum at one go, what would the parties have to say about the idea?”

46.  At Mr Tam’s oral closing, this discussion took place[32]: -

“COURT: Putting our minds back to the year 2005, if [D] would have to pay 1 million upfront, [P] would have to pay a lot more than 1 million but over a long period of time, then in one sense they both get what they want. And one cannot say in 2005 they must have thought the deal was unfair or something which they would not have agreed to because… [P] would have to pay more, yes, but over a long period of time… in one sense that’s actually a better contribution than paying 1 million upfront. Does that make the 50/50 agreement more plausible?

MR TAM: It could, but is it something that really crossed [D’s] mind… ?

…

…

COURT: In paragraph 2 you said, “Both parties knew from the very outset that [P’s] contributions to the property would vastly outweigh that of [D’s]… ”

MR TAM: Yes.

COURT: Now, that’s the point I’m making.

MR TAM: Yes.

COURT: Is it because they are contributing in different ways? One is a lump sum; one is a staggered long-period payment. So if you look at it with this in mind instead of just look at the dollar and cents, then did they know one contribution vastly outweigh the other?

MR TAM: Well, that’s a question for whether [D] and [P], it would have crossed their minds in terms of whether it’s a good deal -- I mean of course if it didn’t cross their mind, then whether it’s a good deal, looking back in retrospect, should have at least only a trivial bearing on whether they could have agreed to this. Because of course, you know, as mentioned, she is not, you know, a financier or someone who is highly skilled in these financial calculations. And no one could have known how much exactly or the money could have been used if the money was paid in tranches rather than in one lump sum.

COURT: Right. Okay.

MR TAM: I wonder if that -- because ultimately because if the money was paid in tranches, then of course that money’s also not to be -- it also adds -- it will add up, the intention is that it will add up to a significant sum and that is an ongoing obligation of the plaintiff to repay that sum of money. And in this point, the fact that the money was being paid in tranches and in one lump sum didn’t even cross their mind is quite apparent from the defence and counterclaim… It is something that clearly never crossed their minds in terms of ascertaining their common intention at that time and whether it was inherently probable or improbable that they would have agreed to this common understanding.

COURT: Right.

MR TAM: Yes, and these are my submissions on the first requisition unless Your Honour has any further queries.

COURT: Uh, let me just check. I have a problem with the words “the parties knew”. Did they?

MR TAM: Well, it’s a simple arithmetic calculation, right? The property was 2.8 mil, the defendant paid 1 mil, the rest definitely falls -- it was agreed that the money would fall on [P]… I mean of course one can reach a different conclusion if we include, oh, lost use of money, the compound interest, inflation and so on, but at that time it didn’t cross their mind. So it would not be right, in our submissions, that we impose now today our very sophisticated educated approach to finances back on them back in 2005. At that time they just wanted to get a property, “I’ll pay the initial deposit, you pay the rest”, simple.

COURT: Yes, I suppose you can put it like that and that’s one way of looking at it. I will have to consider it. So you are saying it’s just a matter of doing the calculations and therefore they must have known basically.

MR TAM: Yes. And no one suggested that, you know, with her 1 million she could have, you know, put it into Apple or put it into other S&P funds or ETFs which would have no doubt been more profitable if you look at it today. But ultimately that is the nub of the matter, that no one considered it simply, so it wasn’t part of their factual matrix to consider, from their perspective, as to whether it was inherently probable or improbable or commercially sensible for them to enter into this common understanding.

COURT: Right, and a related point would be utility. I mean both parties agreed that the arrangement has always been that [P] would live in it...

MR TAM: Yes.

COURT: 365 days a year, whereas [D] would live in it possibly, at least at the very beginning, two weeks a year, something like that.

MR TAM: Yes.

COURT: Definitely not 365 days.

MR TAM: Yes.

COURT: So [P] gets more in terms of utility...

MR TAM: Yes, that is a point to consider.

COURT: ...when compared to the...

MR TAM: Yes.

COURT: Yeah. So I have to consider that as well, you would accept that.

MR TAM: Yes, yes, of course. But in this case, it really isn’t that much of -- that much thought can be given into that because ultimately [D] herself said that “oh, when I retire, I can move in here, my daughter Nicola can move in here too. Whenever I come here, I can stay in there too.” I mean that is their case and it was agreed by both of them that they could – [P] could stay in the property. So it was already considered when determining the beneficial interest, it was already factored in, to put it another way.

COURT: Yes. Right, I think that’s all I...

MR TAM: Because ultimately the...

COURT: ...can squeeze from you.

MR TAM: No, no, I mean I’m trying to assist Your Honour on this point because it -- and this also justify why she’s paying a smaller proportion of the property in terms of the price, because she wouldn’t live in it as often as he would, as [P] would.

COURT: Yes.”

47.  After cautious consideration, I have no hesitation in rejecting Mr Tam’s ambitious submission that D’s evidence on the 50/50 beneficial interest division was somehow “contrary to common sense and inherently improbable”. Looking at the matter objectively from the perspective of an objective bystander, the 50/50 division actually made perfect sense. D had a rather large lump sum (from life insurance policies), but no stable income (she was a full-time single-parent and otherwise not working). P had stable income from his employment, but could benefit from a large cash injection. D would only be living in the Property for 2 weeks a year, whilst P would be living in it all-year-round. A 50/50 beneficial interest division based on these objective facts was, or could be, an arrangement which was perfectly fair and made both P & D happy. Against this background, Mr Tam cannot realistically submit there was somehow some sort of inherent improbability in D’s clear evidence that the division between P & D was intended to be 50/50. I am satisfied D’s evidence on this was highly likely to be true, and my finding of fact is that it is indeed true.

48.  Moving on to §§47 & 48 of P’s Written Closing, Mr Tam, on behalf of P, entirely properly drew my attention to a discrepancy. In gist, D said this orally under oath, under Mr Tam’s cross-examination[33]: -

“問：係，好呀。咁妳講一講喇，去返2005年嘅時候喇，妳嗰個時候妳就話妳係打畀李振邦先生...

答：係。

問：話妳可以畀1,000,000港幣去幫佢買樓...

答：唔，係...

問：...定係點呀，即係妳用個字眼記唔記得係乜嘢呀，幫佢買樓、一齊夾份吖？

答：我嗰陣時打電話畀佢，我就話「阿邦，係咪搵緊屋呀？係點樣樣？」佢話--李振邦同我講話佢打算買--打算買屋，咁我--咁我仲話--咁我話「我可以provide，即係提供拎個首期大概$1,000,000，咁樣大家一齊合作買。」咁樣樣，我凈係咁講啫，我--跟住我就話「我--其他費用我係唔會負責，因為我唔--我--我冇能力再負責其他費用，即係包括咩呢，mortgage、管理費、government rent同埋屋嘅維修」，咁當時李振邦就話願意，好咁樣樣，咁我就跟住話就話「我--我同我女就返嚟有得住」，咁李振邦買咗，梗係--梗係佢有得住，就咁樣，跟住就話賣樓呢就係每人五十、五十。

問：有講出嚟每人五十、五士嘅？

答：有。

問：請妳記住呢個答案先。”

49.  So, as we can see above, D’s sworn oral evidence was that the discussion between the parties on the 50/50 beneficial interest division was express, and orally over the phone.

50.  D repeated that evidence, under Mr Tam’s cross-examination, at a later time within the same day, in this manner[34]: -

“問：好喇，其實想問一問呢，就係呢個物業嗰個實益嘅--實益權嘅分布嘅，咁妳個案情呢，即係以妳嘅理解呢，就係話Raymond所買嘅樓妳同佢都係一人一半嘅係，係咪？

答：係。

問：咁呢個係講電話嘅時候已經係講咗㗎喇？

答：係。”

51.  The problem, as Mr Tam had correctly pointed out at §§47 & 48 of P’s Written Closing, is that that was not how D phrased her evidence in D’s WS. In D’s WS, specifically its §§23 & 24, D said this: -

“… I contacted Raymond in around mid-2005 by international phone call and asked if he was interested to buy a flat. He confirmed he was interested. I told him that I could provide HK$1,000,000 for him to acquire any property in Hong Kong jointly with me at an affordable price range upon his choice but he would need to settle the balance purchase price. Raymond’s reply was that he could have a lot more choices with my contribution. He also indicated that I could not get back my money within a short period of time after I put my money in. I replied that I understood. Apart from the above, nothing more was mentioned in the short phone call. The phone call was short due to expensive international phone call fees in those old days… Nevertheless, it was clear to both of us that, by way of my HK$1,000,000 contribution, I would acquire an equal interest in any property that Raymond would use the HK$1,000,000 to eventually purchase. This was simple – but for my contribution of HK$1,000,000, Raymond could not even afford buying anything himself. This is further proved by Raymond’s lack of financial contribution to the initial acquisition of the Property.” [Emphasis added]

52.  One can read and re-read D’s WS including its §§23 & 24 and get a clear impression that in D’s WS, D’s case was that up to the point of the parties’ International telephone calls (ie prior to the Meeting Date), the 50/50 common intention was unspoken, instead of communicated. During D’s oral evidence, however, D had twice said the 50/50 common intention had been expressly communicated during those telephone calls (ie prior to the Meeting Date). The discrepancy did call for an explanation from D. I asked for it. This was the exchange[35]: -

“官：咁妳講咗喇，事實上係有喺個討論度直接講咗五十五十嘅。咁返番去之前條問題，咁點解第23段妳又冇將呢樣嘢寫得咁清楚嘅？個原因係咩呀？有冇原因？有就而家講。

答：我冇原因㗎。”

53.  In gist, therefore, D was wholly unable to explain that specific discrepancy, or as to why §§23 & 24 of D’s WS did not mention the alleged express communication. That was clearly unsatisfactory.

54.  There are, of course, numerous possibilities as to why §§23 & 24 of D’s WS did not mention the alleged express communication. By way of example, D’s allegation could have been a recent fabrication. It is also possible for the reason to be an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously. If I must make a factual finding, looking at how generally bad the drafting of D’s WS really was, I would find the true reason to be an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously.

55.  Fortunately, the point is immaterial. As I mentioned above, it is an agreed fact that on the Meeting Date, at Solicitor Ho’s office in Hong Kong, Solicitor Ho suggested a 50/50 split, and P stayed silent on the 50/50 split suggestion. The documentation which followed[36] accurately reflected the parties’ agreement to a 50/50 split. P never suggested creating another document to record something different, despite the fact that he worked for a bank[37], and despite the fact that P & D were both inside a solicitors’ office with access to lawyers, their secretaries, computers, printers and stationery. That strongly supported D’s evidence before me that the common intention between the parties was a 50/50 split of the beneficial interest. In my view, P had no acceptable answer to this, and this makes the presence or absence of any prior discussions immaterial. Whether there was, or was never, any prior discussions on the 50/50 split, I would still have focused on what did and what did not happen at Solicitor Ho’s office on the Meeting Date[38] and accepted D’s evidence on the parties’ common intention as the truth.

56.  In this connection, I am of course guided by what was said by Godfrey Lam J (as Lam JA then was) in the oft-cited case of Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) that in common intention constructive trust (“CICT”) litigation, one should start with “evidence of express discussions” whilst at all times recognizing and remembering the parties’ other conduct “remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested”. P’s silence and inaction on the Meeting Date was highly material conduct which I should refer to and heavily rely on. Indeed, I consider that to be the key to the truth. Other matters are still relevant, but immaterial.

57.  Mr Tam’s slightly better point is to be found in §§53 to 56 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s oral evidence on the issue of price. It went as follows[39]: -

“官：或者我咁樣問妳喇。妳個講法就係，即係總之妳就係出$1,000,000喇...

答：喀。

官：...妳唔變㗎喇，呢個就係肯定嘅$1,000,000，「我係出$1,000,000㗎喇」，咁但係佢就可以睇住自己嘅經濟能力就係揀個佢認為合適嘅單位㗎嘛，即係呢個係妳個講法？

答：係喇。

官：咁如果--即係呢個實際上佢後屘揀咗個就即係二百鬆啲萬嘅咁樣，咁就冇咩大問題嘅。

答：係喇。

官：咁但係你哋傾嘅時候未講，即係到最屘會揀咗個點樣樣嘅單位㗎嘛。咁如果萬一喺妳唔知情嘅情況之下李振邦原來中咗六合彩喎，好多錢呀，嘩，正，用下啲錢嚟投資先，咁佢結果就揀咗個--講大啲喇不如，一億嘅單位，一億，好大呀，咁妳會唔會覺得「咦，一億呀，我凈係出咗$1,000,000，我都有百分之五十，喂，你咁傻呀，唔好咁樣喇，即係我����你還����你吖，冇理由我出$1,000,000，但係有$50,000,000嘅權益㗎」，咁所以妳呢一個五十五十嘅諗法… 冇即係考慮到最終嗰個價錢… 物業嘅價錢可能係一億嘅咁樣，咁係咪會有問題呢？喺當時2005年諗嘅時候未知最終價錢就定咗五十五十呢個規矩，妳會唔會當時覺得有問題？未必係對妳差？可能係對妳太好？妳有冇諗過呀咁？

答：如果佢真係去到一億，我--係我直情唔參--我直情唔參--我直情唔參與，即係你����嘅話，根本第一，冇可能，冇可能嘅嘢，即係如果大概，爭少少做到呢，我--我都會參與，即係我意思唔係--我意思唔係一億呀，即係我--係我--係我$10,000,000，我係知佢做緊工，即係有工做，如果你話去到--去到真係有嚿大錢，天跌落嚟嘅，我唔會參與，叫佢自己承受番囉，即係我唔會話--到時我--到時我話我係--係--係我唔買喇，即係我會自己咁樣㗎，因為嗰時我發覺佢係需要搵地方住，需要，我先做呢下。去到嗰個位，唔會話，嘩，你一億呀，我 照$50,000,000都幾多--我唔會，因為啲錢係佢嘅，啲錢係佢㗎嘛，我唔會佔任何嘢。

官：係喇，呢個就係跟住嗰個跟進問題。好清楚明白晒。咁跟住我想問嘅就係，既然如果係一億嘅樓，妳一定會話「黐線，梗係唔好喇，你--你--你唔好咁樣喇」...

答：我$4,000,000都--我$4,000,000都唔會。

官：係喇，咁條界妳會喺邊度劃呢，即係妳2005年諗呢樣嘢嘅時候，妳有冇諗過？可能有。可能冇㗎。我唔知。要問妳。妳有冇諗過，如果個價錢係大到邊一個點妳就會覺得五十五十係唔再係適合呢？

答：我會諗，我係去到...

官：唔。

答：嗱，我嗰時出$1,000,000，即係我會諗--即係雖然我係唔清楚香港嘅嘢，但係唔多唔少都有啲概念，有啲嘅，即係香港個環境點樣，size有啲嘅，我大概，嗱，譬如size，淘大幾十萬都有，咁你去買極，我出$1,000,000，我係諗住你係出$2,000,000喥，即係前後喇，我冇--冇exactly個數㗎，咁我$2,000,000喥咁我就會參與，如果過咗條界，過咗條界，去到四字頭呢，我已唔參與喇。

官：咁妳係而家先諗，定係2005年都有諗過條界呀？

答：我亦都--我都有諗嘅。

官：有諗條界呀？

答：就即係去到條--過咗條界，係我唔參與喇，你話如果突然間有一億，我更加唔會，而$4,000,000我已經唔會參與。

官：係，好，咁唔好介意我哋即係問得仔細喇，聽到妳講喇，2005年有諗條界嘅，咁有冇溝通條界㗎，即係有冇話畀...

答：冇，我冇，我冇。

官：冇嘅，即係妳相信妳自己諗嘅...

答：如果佢講咗出嚟幾多，我話「你咁多，我係」--如果佢話「我睇到幾多」，我唔參與，一過咗條界，我唔參與。

官：即係有諗，但係妳自己諗，冇同細佬講嘅？

答：冇，冇。

官：明白，明白，好，好清楚，非常清楚。

答：總之佢未--一日未曾畀訂，佢會--佢會講「我睇到$4,000,000」，我話「你使唔使，呢啲係--呢啲係--呢啲係--係你自己諗喇，我唔參與」，我可以--我可以咁講嘢嘅。

官：明白，非常之好，thank you。”

58.  Mr Tam’s point, set out in §§53 to 56 of P’s Written Closing, is to the effect that it made no sense for the parties to have agreed to a 50/50 division at a point in time when the ultimate price or value of the Property was an unknown, so that the fairness or otherwise of a 50/50 division must also be an unknown.

59.  Fortunately, the point is also immaterial. Whilst the price was an unknown at the beginning of the parties’ oral discussion, by the Meeting Date, it was known. Whether there was, or was never, a common intention at any point prior to the Meeting Date is a red-herring. It did not matter at all. It is clearly sufficient, for the purpose of my adjudication of §12 of D’s Amended Defence and Counterclaim filed on 12 May 2022 (“AD&CC”), and for the purposes of deciding the correct outcome of, and/or the correct reliefs for, this action, that by the time of the Meeting Date, the parties had a common intention[40]. For the same reasons as set out in §§54 & 55 above, my finding is that that was the case. By the time of the Meeting Date, the parties plainly had a common intention that there should be a 50/50 split of the beneficial interests of the Property. The formal documentation which followed[41] accurately reflected that common intention. Accordingly, while I have carefully considered Mr Tam’s submissions regarding D’s evidence as set out in §57 above, I have come to the firm view that such submissions are in fact immaterial.

60.  Mr Tam also criticized, generally, the way D had “expanded” her evidence under cross-examination. I noticed that myself and had asked D directly, in this manner[42]: -

“官：喀，sorry，Mr Tam。大律師條問題係話，妳啱啱嗰個答案或者嗰幾個答案其實係非常清楚嘅，即係妳話「其實我心入面都有諗過呢，即係如果係個單位太貴呢，咁就唔再係五十五十嘅」，咁問妳條界喺邊，妳就話心入面係有條界，咁妳亦都講得好清楚喇，條界係冇同原告人講嘅，妳心入面諗嘅啫。咁跟住大律師好正常地就會問喇，咁點解妳喺寫妳嘅證人陳述書或者狀紙嘅時候係冇講得清楚話妳心目中都有個諗法就係「如果個單位太貴呢，就唔再係五十五十喇，對我細佬唔公平」，咁就冇咁樣寫嘅。咁客觀事實就係冇寫喇，咁大律師條問題就係「點解嘅，點解唔喺證人供詞咁樣寫，而係頭先先答嘅，會唔會係因為根本就係虛假，作出嚟，所以咪冇寫囉，定有其他原因頭先先至講，之前冇講呢？」

答：唔係虛假。

官：得，寫低佢先，唔係虛假。係喇，咁跟住下一個要澄清嘅就係，咁既然唔係虛假，點解唔一早寫呢？

答：做呢啲嗰時佢有SoC係--係我先寫之嘛，當時冇--冇寫咁多嘢㗎，嗰時喺電話冇講㗎嘛，因為要做SoC--唔係，Raymond做SoC，而我又要答辯。

官：係。

答：咁佢--佢個SoC話寫話咩賺，對--大家contribution幾多，蝕就賠$1,000,000咁當時佢都冇講呀，係--佢喺電話度，點吖，一樣係冇--一樣係冇講過㗎。

官：唔，咁妳喺個證人陳述書度冇講話妳心目中有諗過個單位太貴就唔再係五十五十，嘅原因係，即係點解唔寫呀？

答：單位太貴原因係唔寫五十五十？

官：唔係，妳個講法係話如果個單位太貴，妳就唔會再堅持五十五十㗎喇嘛。

答：我直情唔參與，即係唔買，你自己買喇。

官：係喇，係喇，咁但係點解妳個證人陳述書唔係寫得咁仔細呢，即係有冇個原因點解個證人陳述書唔係寫得咁仔細呀？

答：我唔知要寫呢啲吖嘛。

官：明白，即係個原因就係因為妳唔知要寫得咁仔細呀？

答：係喇，我唔知要寫，因為我都未曾--未曾去過法庭嗰個--我真係第一次嚟㗎咋，未曾去過法庭，未曾要咁樣樣做。

官：唔，理解，知道，唔該。”

61.  Having considered the inherent probability of D’s answers as set out verbatim above, the fact that there was no dispute this litigation was indeed D’s first litigation, and having cautiously observed D’s demeanour whilst she was giving evidence before me in the witness box, I accept D’s answers as set out above as entirely true.

62.  Moving on to §§66 & 67 of P’s Written Closing, Mr Tam, on behalf of P, quite properly drew my attention to an alleged discrepancy in D’s evidence. In gist, D said this under Mr Tam’s cross-examination[43]: -

“答：如果佢--嗱，如果去到結婚呢度呢，我就會同佢����「嗱，如果你結婚呢，就間屋呢就我係--係我就要賣喇」，咁我就冇諗過佢生仔嘅，即係就結婚呢一下啫，咁我--係，我就唔會叫佢即刻走，即係通--有--即係有--即係有個--即係有個通--有個通知，「如果你結婚呢，間屋要賣喇，咁你自己」--咁佢同佢老婆要自己諗，要打算幾--要打算幾--要--個計劃要點樣樣做。

問：係，妳有冇同佢討論過㗎，2005年長途電話嘅時候？

答：電話冇講呢樣嘢，就係--就係講買樓啫，冇，佢冇講過話結婚嘅。”

63.  This is an alleged discrepancy in that if one looks at §11.3 of D’s AD&CC, there was this embarrassing (in the sense of extremely poorly drafted) plea which read: -

“As a result of these discussions between [P] and [D], they had formed a common understanding (“Common Understanding”) that… 11.3.5… in the event that [P] got married and had children, the parties would sell the Property and split the sale proceeds equally…”

64.  That plea above was embarrassing (in the sense of extremely poorly drafted) since the “discussions” were never properly particularized, and the reader was left dumbfounded by how some unparticularized words were supposed to have made a leap to become a common understanding in the manner as pleaded. There was a huge unexplained void in D’s AD&CC (and I shall come back to this when I get to explain my decision on costs) and D’s admission at closing that the pleading “could be polished further” was a massive understatement[44]. However, it is debatable whether D’s oral evidence as quoted above was consistent, or inconsistent, with §11.3 of D’s AD&CC. Given how horrible the drafting of §11.3 of D’s AD&CC really was, it would have been difficult to rule on the argument.

65.  Fortunately, like so many of the points industriously raised by Mr Tam, this particular point is also immaterial. Factually as it turned out, P never got married or had children. So, the parties’ understanding of this particular part of the transaction is in fact something we need not deal with at all. Whatever was talked about or never talked about in relation to this, my assessment of the parties’ evidence would be identical, and the outcome of this action would also be identical. The whole point is a red-herring.

66.  Mr Tam then made a slightly better point at §§68 to 72 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s evidence on the issue of “keeping original receipts”. D’s evidence on this went as follows[45]: -

“問：唔係，我想問，既然大家同意咗五五喇，咁你大家點會再分開再同意去保留番你自己出錢嘅紀錄呢？

官：妳係咪唔明條問題呀？

答：我真係唔明。

官：因為妳個案情就係話，妳同妳細佬個共同嘅理解，同埋協議呢，就係層樓係一人一半嘅。

答：係呀，五五呀。

官：無論發生咩事都一人一半嘅。

答：係。

官：咁既然係咁，妳究竟係出資一毫子，定係出資一千億，係完全唔關事㗎嘛，都係一半吖嘛，咁點解要保留出資紀錄呢？

答：當時係我畀㗎嘛個費用。

官：係，知道，喀，咁但係保存嚟做咩呢，因為就算妳出嘅係一毫子定係一千億，妳都係有層樓嘅百分之五十吖嘛，咁所以妳出資係出咗幾多錢，係妳出定係細佬出，根據妳嘅講法係完全冇關係㗎嘛，完全冇關係嘅嘢，點解要紀錄呢？

答：我呢個講法，你講係咪我...

官：係，妳第13 -- 第15段呢度係話，雙方因為係想保存番大家究竟分別出咗幾多錢嘅紀錄，所以就同意咗由邊個畀就邊個保管，咁我哋冇爭議妳呢個講法，本身，暫時喇起碼，我哋唔明嘅就係，點解咁奇怪呢，唔需要個喎，話明五十五十吖嘛，咁邊個出，出幾多，唔關事嘅，點解咁著緊要有個紀錄呢，個紀錄同妳個權益冇關㗎嘛。

答：其實呢句說話呢，我witness都有講關於話係邊個出幾多係無關㗎，即係唔係--即係唔關receipt事㗎，但係當時我係有咁講話「邊--嗱，邊個畀就邊個keep番喇」，咁隨口咁講過，我話「邊個畀邊個keep」，咁張receipt得--得一張嘅啫，咁我話--即係嗰時receipt得一張，人哋拎咗出嚟，我話「我想要呀，邊個畀就邊個keep番喇」，就咁攞，咁就攞，咁就攞咗喇。

官：唔，明白，如果妳個講法凈係咁樣，即係話凈係話「邊個keep--邊個出就邊個keep」，咁就明喎，咁我就明喎。

答：喀。

官：但係，妳第15段，唔係咁寫個喎，妳話，妳邊個畀就邊個keep，係有個目的個喎，“in order for” 吖嘛，即係目的呀，有個目的嘅，個目的就係，要保留出資紀錄，呢橛就係我哋唔明嗰橛喇，就唔係頭先嗰橛喎，呢橛，點解有呢個目的呢？因為唔關事個喎，根據妳個講法，咁點解係呢個係個目的呀？

答：其實我係冇目的㗎，寫嗰陣時，我話--我就話邊個出邊個keep番，就寫咗係，即係個receipt係點樣嚟，個receipt係點樣嚟，就係邊個出邊個keep番，個receipt係--個--即係點解會有呢張receipt喺我手呢，就係我當時畀咗錢，佢--佢一張receipt，大家都望住，邊個keep好呀，跟住我出聲就話「嗱，邊個畀就邊個攞番」，咁我就寫咗--寫咗呢一度，就係...

官：咁對妳公平少少先，唔好講目的喇，講用途喇。

答：喀。

官：咁妳保留啲--即係或者有個協議係要咁樣保留嗰啲出資紀錄，有冇諗係用途係咩嚟㗎，即係點解要咁做呀？

答：用途，驚住第二日有拗--有爭拗又話「呢--呢樣唔係妳出，妳記錯咗」，嗰樣唔係，即係有個receipt，有少少保障提醒番自己我--我--我hold--我--我手上個receipt就係我--就係我畀咗㗎喇。

官：係，理解，咁就正正就係跟住下一個問題喇，既然妳個協議係，係咪都五十五十嘅，就算記錯晒邊個出幾多，都冇關係㗎，仲有咩重要性呢？點解要特登有個協議，係要千祈唔好記錯邊個出幾多呀？點解要咁重要呢？

答：當其時呀，當時我收埋咗張receipt，我就擺埋，我就冇--我就冇咩再諗番呢啲嘢喎，如果你--如果你咁問我呢，我就因為做呢份嘢，就寫呢份嘢，我就番起，我「抄」番佢，有張receipt，呢個receipt係當時我係畀咗錢，係自己係keep番嘅，就咁樣喇，咁點--因為我呢份嘢呢，我又要refer番佢嗰時嘅SoC就寫一啲，我又要--我--我要做反駁喇，咁就變咗呢樣--呢樣嘢出嚟喇。

官：咁妳點樣解釋第15段呢個寫法嘅第一部分呢，即係第二部分我明，邊個畀就邊個保存，呢個我明，唔使講呢個喇。第一，第一句，“in order for the parties to keep a record on the parties’ respective contribution”，「即係為咗令到雙方係有個紀錄雙方出咗幾多錢」呢一橛點解會喺第15段出嚟嘅，妳有冇解釋㗎？

答：雙方有冇--咁就我--我真係唔識答呢啲問題喇。

官：即係妳唔知點解？

答：我真係唔知點解，我當時--我都話我用意係好--好--好basic，即係冇諗其他嘢，話有receipt，我畀錢，我keep番。咁至於寫呢樣嘢呢，可能我係根據番要駁SoC，就寫到呢個咩嘢--呢個咩先？係喇，根據我要反駁番SoC，就寫咗呢樣嘢出嚟，同埋根據--我就話，既然五十、五十，其實根本都唔需要keep receipt嘅。

官：係囉，呢個就係我哋問緊嘅嘢囉。

答：係喇，五十、五十，唔需要keep receipt㗎，咁佢根本就唔需要要，唔知，我唔理你畀幾多，即係我之前講咗，根本就係咁樣keep receipt係唔需要嘅，但係個receipt係當時係keep係抱--係冇嘢㗎，係畀咗錢，keep住，擠埋，就係咁樣，我又冇話特別咩話，咁多年喇，冇特別話「我--係我畀咗乜乜乜呀」，我冇講呢啲嘢㗎，就咁擠埋，係我亦冇提出話「你畀得少，我畀得多，係--係--係我又畀過啲乜嘢」，我冇講過。

官：明白。Mr Tam。

問：但係呢個狀書係個律師幫妳去撰寫㗎嘛，係咪？

答：係呀，狀書，撰寫㗎。

問：咁個律師一定係根據妳嘅指示先咁寫法嘅啫，係咪，即係個律師唔會幫妳生安白造幫妳作啲指示出嚟狀書度寫㗎嘛，係咪？一定係妳同佢講過，佢先咁樣幫妳去撰寫㗎嘛，係咪？

答：嗰陣時，我同律師講，話我喺個律師樓度，係我有講過話「邊個畀錢邊個keep receipt」，我--係我就係咁講㗎咋。

問：咁妳其實，妳即係睇過呢個狀書，妳都有簽名㗎嘛，妳簽過兩次添㗎嘛，有原版同埋修改嘅時候，亦都上去睇過晒--睇過晒成份文件先去簽㗎喇，係咪？

答：係，係。

問：妳都識英文㗎嘛？

答：係，係，我識睇。

問：妳識睇份狀書㗎喇？

答：係吖，啱。

問：咁點解，呢個點，其實妳係，即係會喺呢度出現，既然妳冇諗到咁多喇，呢個講法又唔啱嘅，又唔要求妳修正佢嘅呢？

答：即係我--嗰陣時我同律師話，我手上係有呢啲receipt，我係咁同律師講，我嗰個時候話，當時我喺律師樓講過，我手上有呢啲receipt，話邊個畀錢就邊個keep receipt，咁咪就係咁寫，咁寫咗囉，可能會唔會係因為而家寫落嚟個--個--個語--即係解--寫完之後個理--理解有唔同--唔同咗，係咪，我感覺你哋，係咪咁樣呀？

問：唔係...

官：唔係，應該咁樣同妳解釋，大律師條問題就係講緊，妳喺上面簽名呢個客觀事實呀，我哋可唔可以睇一睇個簽名㗎，對妳公平啲。其實妳呢喺...

MR TAM：C043。

官：係喇...

MR TAM：哦，唔係，C零 -- C...

官：去咗邊呀？

MR TAM：或者我--statement of truth嘅。

官：係咪分開咗㗎？

MR TAM：係。

官：我嗰份冇嘅。

MR CHEUNG: We confirm that will be in another document. We do not dispute the final statement of truth...

MR TAM: Thank you.

MR CHEUNG: ...in relation to this.

MR TAM: Thank you.

官：Okay。證人，唔好意思，似乎就唔喺個文件冊入面。冇人知點解，應該係喺㗎。呢個係律師做錯嘢，唔關妳事。咁點都好喇，大家冇爭議，妳就係簽咗個屬實申述兩次，就係去確認成份狀紙嘅內容妳係真誠地相信係真嘅。咁所以其實係有三個相關嘅時間嘅，妳先係會畀指示畀律師叫佢寫狀紙喇，呢個係第一個時間應該係早過個文件日期㗎喇，因為要時間㗎嘛。第二個相關嘅時間就係第一次簽屬實申述，咁妳會番睇一次，同埋會有人解釋一次，跟住妳話「啱呀」，正確先簽，咁呢個第二次喇。咁跟住有第三個時段就係，因為個狀紙曾經作出過修訂嘅，黑色就係原本，紅色就係修訂，咁做咗修訂呢，程序上妳又要再簽多一次屬實申述嘅，咁嗰度妳又會係睇過一次喇，有人解過一次喇，跟住簽名確認「係，我真誠地相信所有嘢係真嘅」，咁所以總共有三個時段妳係可以就狀紙嘅內容作出修改嘅，最少，因為可能就算係第一個時段都係重複又重複咁來來往往咁樣嘅，但係最少我哋知道一定有三個時段，畀指示嗰個時段簽、第一個屬實申述嗰個時段同埋簽二個屬實申述嗰個時段。咁所以大律師個問題就係，假設妳第一個時段畀指示嘅時候畀錯咗又好，唔小心又好，咁第二次呢，妳覆睇嘅時候唔叫人改，咁如果第二次都係眼大睇過龍，第三次呢，第三次覆睇嘅時候點解又唔改呀？即係總共妳有三個機會係去更正第15段嘅第一句，可以扠咗佢嘅，因為妳可以話「係呀，有保留收據呀，係有同意係邊個畀係邊個保留，但係目的就唔係呢個，所以呢句其實係唔啱嘅，扠咗佢喇」咁樣，妳總共有三個--最少三個機會去更正，咁點解妳冇用到呢三個機會嘅任何一個機會嚟到更正第15段嘅第一句呢？

答：其實如果你咁講法，根本嗰時佢SoC嗰度改咗好多、好多...

官：唔。

答：咁我哋猛針對佢個SoC改乜嘢我就答乜嘢，咁佢--佢SoC呢就冇--冇--冇好似好正規提及keep receipt係我唔應該嘅，即係佢冇講過呢樣嘢，佢話...

官：唔，唔。

答：...都好正常嘅，咁我就冇再睇番我十五嗰個...

官：唔。

答：...我就冇再睇喇，即係話佢話邊個畀錢邊個keep receipt係正常嘅，佢SoC係咁--係咁寫嘅...

官：唔，唔。

答：咁我就冇再 -- 第三次冇再番睇。如果佢又係話明唔係嘅，咁我就會更正，因為佢冇--佢話覺得係正常嘅。

官：明白，即係基本上就係冇再番睇過第15段？

答：即係佢 -- 佢冇再話我寫呢樣嘢係唔啱，SO佢冇咁講話我係keep receipt係唔啱，咁我--咁我咪唔再番睇，我係專登去--專--特別著重大家係焦點focus佢紅色嗰啲話我乜乜乜，咁我哋做amended defence嘅呢就係要駁番佢「唔係咁，唔係咁」...

官：唔。

答：...但係佢冇講特別指明我keep receipt係唔啱嘅...

官：唔。

答：...佢冇咁講過，佢--後屘佢自己都話，keep receipt，邊個畀錢邊個keep receipt係正常嘅，咁我咪唔改囉。

官：唔，唔，唔。明白，跟進埋一條問題喇，因為其實大律師都會問㗎喇，順便問埋喇。妳喺大律師啱啱提出呢個觀點之前有冇任何時間發現第15段第一句係不準確嘅？

答：冇發現。

官：冇發現。

答：冇發現呢樣嘢。

官：明白。”

67.  As we can see from the long exchange recited verbatim above, D in effect blamed her solicitors for misunderstanding her instructions, and then erroneously making the keeping of original receipts a pleaded material fact when they should never have done so. While I had mentioned on many occasions, such as Fang Zhaohua v Kam Fung Engineering Limited [2023] HKDC 971 (§34, per DDJ Kenneth KY Lam), that blaming a person’s own lawyers could be the typical behaviour of a dishonest or unreliable witness, the exceptional nature of the specific error here points to the other direction – the specific error here should be obvious to any lawyer worth his salt but could be way too subtle for a lay person. That being the exceptional nature of the error, and having cautiously observed D’s demeanour whilst she was answering those questions set out verbatim above, I accept D’s answers as set out verbatim above as entirely true. In other words, I find as a fact that D’s instruction to her solicitors was just “the parties agreed whoever paid a sum should also keep the receipt for that sum”, and a good solicitor really should have realized that was not a material fact, and was indeed irrelevant to the issue in dispute.

68.  I should add Mr Tam’s submission went further. Specifically, Mr Tam submitted to me the keeping of receipts supported P’s case. That is because §11.7 of P’s Amended Statement of Claim (“ASoC”) suggested it was part of the parties’ common intention that in the event of the Property being sold with a net profit, the proceeds of sale “shall be divided on a pro rata basis according to their respective contributions towards the Property at the time of the sale”, and the keeping of receipts was consistent with P’s case.

69.  On that last point, as I had previously mentioned to counsel[46], I was troubled by just how artificial and contrived P’s case really was. On reflection, I came to the firm view, for reasons which I shall set out below, that P’s case on the common intention could not possibly be true. By way of example, it was never P’s case that the parties had agreed or worked out, with any degree of certainty or clarity, what sort of expenses would qualify as “contributions towards the Property”. Would renovation expenses, the price of new air-conditioning units, or an amount of money spent on buying new doors, etc., be “contributions towards the Property” so that they need to be taken into account in the calculations? If the parties had never worked that out, how would the parties know what kind of receipts need to be kept, and what kind of money should never be spent without consulting the other co-owner first? If P’s case is so inherently improbable as to be impossible, and it is indeed my finding, for full reasons to be set out in the next section, that P’s case is so inherently improbable as to be impossible, then the mere fact that D kept a receipt is neither here nor there. Whilst I had previously considered this relevant and troubling[47] – on reflection the point is actually wholly immaterial.

70.  That brings us to §§73 to 75 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s evidence on her plan to eventually use the Property as a retirement home. It was D’s evidence that back in 2005, she had such a plan, but she never told P. The evidence went as follows[48]: -

“問：咁嗰個時候妳有冇同李振邦講過，妳退休嘅時候有可能返嚟長住㗎？

答：我嗰時有--我嗰時我係有咁嘅計劃退休，但係我冇同李振邦先生講，因為我係自己--間屋我係有買，我係有份買㗎嘛，我係個plan我係plan我自己嘅啫。

問：妳都冇同佢講過呢，第二時可��有計劃妳個Nicola都係會畢業之後嚟香港，都喺嗰度長住㗎，有冇講過㗎？

答：冇，我講呢樣嘢，因為Nicola--嗰時2005年我係有plan同Nicola買呢間屋，但係至於返唔返都係Nicola要自己決定嘅。

問：即係其妳真係有諗過呢，個單位即係五百零呎喇、兩房，係由妳加埋Nicola加埋Raymond一齊全部一齊長住嘅，係咪？

答：我覺得如果真係都幾--幾好吖，嗱，咁李振邦返工，Nicola返工，係--係我又可以做屋企嘢，又可以幫手煮下飯，咁佢返嚟有--返嚟有--有--有得食，又可以同佢執下屋，係幾--係幾好㗎喎。

問：其實會唔會屋企有個成年男人唔係咁方便呢，即係妳兩母女？

答：但係嗰個係我細佬嚟㗎嘛，我--我唔係街--我唔係出面啲成人吖，嗰個唔係我老公吖嘛，我係知呀，嗰個細佬嚟㗎嘛，同埋係兩間房，唔係--唔係一間房埋三個人吖嘛，有幾唔方便呀？你香港好多人都係一間屋住--住好多人㗎喇，喺我--喺細個彩虹邨都係一家八口都係住--即係我係--我細個模式我已經入咗腦，我覺得係冇問題。

問：係，好呀。咁樣講喇，李振����都係成年人喇，如果第時佢拍拖咁點算呀，佢要帶佢嘅伴侶或者女朋友返嚟？

答：呢個問題係李振邦自己同女朋友解釋喇。

問：唔係，妳有冇諗過㗎？

答：我係諗我--呢個問題咁佢女--佢女--佢哋兩個人自己--佢自己諗喇，呢啲嘢，我唔會同佢諗呢啲嘢，因為我--因為我買呢間屋嗰時佢哋係未--佢哋係結婚㗎嘛，係女--係女朋友。

官：證人，我反而想知嘅係，妳2005年，有冇諗過，係，如果好似妳頭先咁講三個人喺度住，李振邦一間房妳同妳個女一間房，咁李振邦就返工嘅，夜晚先返嚟，咁就幾好嘅。

答：係呀。

官：如果李振邦唔係一個人呢？佢有女朋友，佢可能會夜晚返到嚟冚埋房門跟住好嘈咁樣㗎嘛？咁跟住妳個女又可能仲係好細㗎嘛？咁會唔會唔係幾好呢？即係唔係講緊對李振邦唔好呀。講緊對妳同妳個女唔好呀。如果佢係一個人，咁冇問題啦！咁兩個人呢？好嘈呢？妳有冇諗過可能係一個問題？即係有諗過？定係冇諗過先，2005年嘅時候？

答：我係冇諗過呢個問題。

官：冇諗過呀，唔，咁就得喇。清楚明白，謝謝。”

71.  Mr Tam criticized D’s evidence on this issue in several ways, for example by emphasizing how inappropriate it could be for a relatively young lady (namely, Nicola) to be living in a small unit with a presumably heterosexual male adult with unknown or uncertain habits (namely, P, even though he was a blood relative) on a long term basis, or how inappropriate it could be for D or Nicola to be sleeping on the floor or a sofa bed. I have considered all such criticisms with due care but do not consider any of them material. Many people in the world, including D, may have thoughts which can be described as unrealistic, over-optimistic, or wishful thinking. Two people may decide to marry each other thinking they would definitely live happily thereafter, only for the marriage to end up a disaster, or indeed for it to turn into a murder case. A young man may start an innovative business thinking he will become filthy rich only for the business to fail and for him to become a bankrupt. In my view, the kind of unilateral vision or dreams which D said she had was no more incredible than dreaming about a happy marriage, or a successful business. There was no inherent improbability of D having such unilateral vision or dreams back in 2005, before P & D fell out with each other. In any case, I had cautiously observed D’s demeanour when she was answering all such questions under oath, and I accept D was telling me the truth. D can at most be described as slightly over-optimistic, or even naïve. Being genuinely over-optimistic or naïve does not make D an incredible or unreliable witness.

72.  In terms of attacking the credibility of D as a factual witness, Mr Tam made four more points on behalf of P.

73.  At §§97 to 104 of P’s Written Closing, Mr Tam, on behalf of P, drew my attention to D’s oral explanations as to why she did not call her own daughter, Nicola, as a factual witness. In gist, D said this orally under Mr Tam’s cross-examination[49]: -

“問：咁其實Nicola個證供係會幫到妳個喎，係咪？

答：即係你意思Nicola證供幫到我？

問：係，即係佢都作供，佢真係應該同妳講嘅，妳講真話嘅話，佢講真話，個版本應該一樣吖，係咪？

答：唔，係。

問：咁佢呢個成個審訊由禮拜二、三、四，今天佢都坐咗喺觀眾席度吖，係咪？

答：係。

問：佢係可以出庭作證㗎嘛，係咪？

答：係。

問：咁亦都喺妳嗰個timetabling questionnaire，就係嗰個其中一個...

官：問卷。

問：...問卷上喇，又係提及過呢，妳個律師提及過Nicola都可以作證個喎，妳記唔記得㗎？

答：嗰啲--嗱，嗰--佢嗰啲呢就過--嗱，過去幾年出過多張呢啲，我睇完我就唔識咩反應話叫Nicola做，因為我唔識呢啲法庭嘢。

問：咁即係話叫Nicola上去作證，一定係根據妳或者Nicola指示㗎喇，係咪，佢唔會即係無啦啦即係叫一個三--即係求其叫個人上去作證㗎嘛，係咪？

答：等等先，我諗下你所講嘅說話先，sorry。作證呢樣嘢，嗱，呢啲我係推測，因為我買2005年--即係2005年買呢間屋Nicola係13歲喥，咁係做唔到證人嘅，即係我係針對去court呢，係因為個官司係個屋嘅問題。

問：係，咁妳而家呢個反申索㗎嘛...

答：反申索係我...

問：佢都27歲喇，係咪，佢可以作證㗎嘛？

答：咁你係作證係講係佢係噴殺蟲水，27歲，噴殺蟲水嗰下係可以作--係作--作到證。

問：係，咁但係即係有--妳有咁嘅指示俾妳個律師行㗎嘛，係咪？

答：我唔--唔係，我指嗰時我係講有人喺身邊，但係我唔識話Nicola可唔可以作證呀，我唔識講呢樣嘢呀。

官：或者我哋直接跳去個重點啦！事實上，佢冇作證吖嘛！呢個客觀事實嚟㗎？

答：係。

官：點解嘅？

答：我唔知佢要--要--要做證，因為佢個證人呢就係，佢作證就係殺蟲水嗰日3月11就喺--就喺--喺度。

官：唔。

答：買屋嗰時佢係13歲，係咪需要做證呢，話媽咪--有跟媽咪去做買屋，我唔知係咪要呀？

官：唔，唔，咁妳有冇喺任何時間叫過妳個女就住殺蟲水事件做證人吖？

答：有冇--呢個時間有冇講過呀，即係有...

官：即係，「阿女，做證人啦！」，咁有冇㗎？

答：有冇講過呀，咁如果係--我諗住兩樣係同一樣嘢吖嘛，咁買屋嗰度係唔--係做唔到證人，因為佢13歲，咁我咪呢個都係做唔到，即係唔使做喇，即係--即係明唔明呀，係因為--雖然係兩--係兩件事，但係因為買屋嗰時佢13歲吖嘛，殺蟲水嗰度係已經廿--已經27歲喇嘛，咁係咪可以做埋，我就唔知。

問：妳個律師同妳講解㗎嘛，呢啲嘢，係咪呀？

答：律師嗰時因為個...

問：即係唔使講佢哋個內容喇，但係即係佢哋會同妳講解...

答：唔係，因為嗰時喺澳洲，唔喺--我唔喺香--唔喺香港，係e-mail㗎咋，即係溝通方面係唔係face-to-face呀。

問：其實妳唔傳召佢做證人嘅原因呢，係因為佢個證據係唔會幫到妳個案情嘅，妳同唔同意？

答：證據唔幫到我案情，幫唔到案情，同唔同意？佢而家做證係證殺蟲水嗰--佢嗰日，係咪？

官：唔係，即係咁樣，我頭先就...

答：我唔明你講咩。

官：我頭先就問妳，事實上妳個女並非證人，呢個客觀事實嚟㗎嘛，佢冇作證吖，佢唔喺度...

答：冇，喀。

官：唔喺證人台度吖，咁我就問妳點解吖嘛。

官：咁妳畀我個原因就係，因為場官司，係主要打2005年買樓，跟住佢嗰時，就13歲...

答：13歲。

官：...咁所以妳就諗住，即係嗰件事就作證唔到喇，咁問妳點解27歲嗰個事件又唔作證呀，咁妳就即係畀咗妳嘅答案喇，咁而家大律師就有個指控嘅，呢個指控嚟嘅，佢指控就話個事實唔係咁嘅，佢唔係證人嘅原因，係因為妳叫咗佢，佢嘅證供都幫唔到妳，所以妳就唔叫佢喇，呢個係佢嘅指控，咁妳對於呢個指控有咩回應呢？

答：即係妳話殺蟲水個指控，嗰個證供，係咪？

官：係，佢嘅指控就係話妳唔叫阿女，係因為阿女幫唔到妳個證供呀，咁妳對於呢個指控有冇咩想講呀？

答：當時我諗法，會唔會係親--太親屬做係--係--係--係呢個永遠佢都幫我吖，所以我咪唔叫囉，即係我係有--我係有咁諗。

官：係，講多次，妳個唔叫佢嘅原因係...

答：親屬。

官：親屬？

答：太親喇，係咪，阿媽同個女？

官：太親。

答：如果佢企喺度嘅，個可信性，咁可信性，即係你哋會唔會信呢？

官：即係妳考慮過呢樣嘢㗎？

答：喀。

官：即係太親，可信性唔太高，所以就唔叫咁呀？

答：係。

官：明白。

問：咁究竟係太親吖，定係因為妳唔知佢可以就住殺蟲水嗰啲嘢作證呀？又畀咗兩個版本喇。

答：兩樣都有。嗱，兩--佢兩個原因，有時做一樣嘢，第一，第一咩事，第二咩事㗎嘛！你可唔可以畀我兩--佢兩個都要，佢要晒呢，妳要我--即係我唔會二選一咁樣啦！

官：唔係，事實上係咪先...

答：事實。

官：即係我哋先釐清事實先喇！事實上係咪兩個原因吖，原因一...

答：嗱，第一就太--太親。

官：係，第二呢，有冇第二㗎，定係得一個㗎咋，唔知呀，事實...

答：第--嗱，第--嗱，第一就太親。

官：係。

答：第二，因為嗰間屋嗰時係佢13歲，係咪可以一齊做呢？

官：唔。

答：定還是妳--就妳做殺蟲水，13歲嗰--佢--佢嗰度唔使做喇，會唔會係咁樣呢，我就唔識呢啲嘢呀！

官：哦。即係兩個原因。第一個，太親，可信性可能妳覺得唔係好可信，或者法官會判咗唔係好可信。第二個原因，就係唔識係咪可以凈係就半件案件作供，係咪咁呀？

答：係喇，第三我係同律師係用e-mail溝--e-mail溝通㗎，唔係face-to-face㗎。

官：第三，同律師係e-mail溝通，就唔係face-to-face。咁有冇第四個原因㗎，定係得三個？

答：冇，冇喇。

官：唔，明白。

問：陣間再問落去會唔會又出現第四個原因、第五個原因㗎喇，係咪呀，妳呢三個原因係即係諗晒㗎喇嘛，即係唔會一陣問問下，咦，哦，原來有第四個原因嘅，第五個、第六個嘅，唔會㗎嘛，係咪？

答：呢個--呢個唔識答呀，呢個真係。

問：好，得，即係確認番係...

官：所以咪畀個機會妳諗清楚囉。

問：好，得，即係確認番，係，係喇，即係妳而家愈諗愈多，咁畀埋機會妳諗多次喇，費事妳諗...

官：因為，今日，係妳最後一日作供㗎啦嘛。妳唔會再作供㗎啦嘛。所以，如果妳有第四個原因，就而家講。如果妳話冇呢，妳就話冇第四個喇。我哋都真係需要知，妳係咪得三個原因嘅。諗清楚，諗清楚先答。

答：當其時係咁，如果突然間話有你哋又唔happy個喎？

官：所以咪畀時間妳諗清楚囉！對妳公平啲吖嘛！慢慢諗，唔緊要！有第四個就有。冇就冇。妳可以諗清楚先答嘅。冇問題。慢慢諗。

答：冇喇，咁樣。

官：冇，三個？

答：係。

官：明白，thank you。

問：咁我直接向妳指出喇。其實，妳講嘅事情呢，所有嘅版本，都係講大話，係咪？

答：我唔同意。

問：而Nicola如果上嚟作證嘅話呢，個版本，根本，同妳，係唔一致嘅，露出破綻㗎！同唔同意？

答：不同意。”

74.  Mr Tam, on behalf of P, criticized the three reasons given by D as incredible. I disagree. D made it clear her reasons were cumulative. The first reason was that in D’s mind, the main issue at the trial was about the parties’ joint purchase of the Property in 2005, and Nicola was only 13 years old then. By reason of her young age at the time, Nicola could never have been a useful witness on or for that issue. The second reason was that in D’s mind, Nicola was her own daughter and thus “too close” to her, and Nicola’s credibility or impartiality as a witness could be challenged. The third reason was that D was in Australia and only communicated with her solicitors by email (instead of face-to-face). In my view, the second reason given by D (namely, that Nicola could be deemed “too close” to D) was in fact a very reasonable explanation. Whereas if I were in D’s shoes, I might have called Nicola anyways, D’s decision not to call her on the assumption or suspicion that Nicola would be deemed “too close” to D, and therefore biased, cannot be said to be unreasonable. In my view, D’s decision never to call Nicola as a witness did not reflect badly on D’s own credibility, and no adverse inference, of any kind, should be drawn against D.

75.  Another focal point, in terms of attacking the credibility of D as a factual witness, made by Mr Tam on behalf of P, can be found in §§105 to 107 of P’s Written Closing, where Mr Tam, on behalf of P, suggested to me that D had, via §16 of D’s WS, mentioned an abortion incident “purely for the purpose of slandering P’s character”. That part of D’s WS read as follows: -

“… As mentioned, Raymond is my younger brother. I would describe my relationship with him before this dispute to be amicable. I recall that I once lent around HK$10,000 to him in around 1996 or 1997 for his then girlfriend’s abortion operation.”

76.  With respect, the short answer to Mr Tam’s point is that there was nothing wrong with that part of D’s WS. There was no suggestion that what happened was illegal or immoral. In my view, it was not defamatory to say or imply that a sexually active and perfectly healthy unmarried man had consensual sex with an adult woman he loved, as a result of which that adult woman required, or had, a lawful abortion. Operations of this nature are exceedingly common and widely-accepted in this day and age. Had the allegation been adultery, or rape, it would have been seriously defamatory, but there was no such, or such similar, defamatory sting in that passage. I certainly would never think less of any person just because he was sexually active and perfectly healthy so that he ended up making his adult girlfriend pregnant, paying for her lawful abortion. I cannot see how any reasonable person in a place like Hong Kong would, in this day and age, have thought otherwise. I reject Mr Tam’s submissions in relation to this.

77.  Moving on to §§108 to 110 of P’s Written Closing, where Mr Tam, on behalf of P, criticized D for having, in §10.1 of her AD&CC, used the phrase “[P] was still a tenant of a third party” when, so Mr Tam said, D should have said “[P] was still a tenant of Mr Li Chun Chung Albert”, naming the third party. With respect, that is immaterial. It is actually true that if I were the person drafting the pleading, I would also have named the person instead of calling him “a third party”. However, choosing to omit that name was also a tolerable way of pleading a case, especially since the name was by itself wholly immaterial to any of the real issues in dispute in this action. Whether P was a tenant of Mr Li Chun Chung Albert, or in fact a tenant of John Doe, or in fact a tenant of Jane Smith, does not in any way affect any trial judge’s determination of the real issues in dispute. Further, the choice of words in D’s AD&CC was probably made by, or advised by, D’s solicitors and calling Mr Li Chun Chung Albert “a third party” is “not wrong”, because Mr Li Chun Chung Albert was never a party to this action, and therefore technically a third party indeed.

78.  In these circumstances, I reject Mr Tam’s submissions on this issue. I do not accept there was any bad faith on the part of D vis-à-vis the way in which Mr Li Chun Chung Albert was called a third party in §10.1 of D’s AD&CC, or that it was something material.

79.  The last main point, in terms of attacking the credibility of D as a factual witness, made by Mr Tam on behalf of P, can be found in §§111 to 114 of P’s Written Closing, where Mr Tam, on behalf of P, suggested to me that D’s oral evidence on the closure of her HSBC account was wholly unsatisfactory. That part of D’s oral evidence went as follows[50]: -

“問：咁妳睇一睇C053吖，第36.1段最屘嗰三行，見唔見到？

答：唔。

問：由“Furthermore”開始。“Furthermore, once the funds in my bank account had been depleted for the purchase of a property, I ordered the HSBC account to be closed”。「再者，當戶口啲錢係因為買呢個物業而用晒嘅時候呢，我就命令呢個滙豐銀行戶口就去關上--關閉，就刪咗銀行戶口」。

答：係。

問：仲有冇嘢新補充呀，呢度？

答：我冇嘢補充。我係用完啲錢我自然就要刪閉。close咗。

官：唔係。我諗大律師想問嗰個問題呢，我又要確保妳理解清楚。

答：好呀。

官：因為呢一段個寫法同妳頭先嘅證供有少少出入。妳頭先嘅講法呢，據我嘅理解，就係，其實，係幾步嘅。第一步，攞咗啲錢嚟買物業喇。咁「boom」，冇咗$1,000,000喇，咁就降級喇。跟住，妳仲有少少剩--仲有少少錢剩，跟住妳用埋佢。跟住妳就刪個戶口。係三步咁樣㗎嘛。但係而家，喺呢一段，個寫法就係，一買完物業，就零鈫喇，即刻刪。跳晒頭先講嗰啲步驟。咁似乎同妳頭先個講法就有啲出入嘅。咁所以大律師，頭先，畀緊一個機會妳，去解釋，呢一段呢一句，同埋妳頭先嘅講法，有出入，有冇原因㗎？如果有嘅，妳而家話個原因畀我哋聽？

答：嗱，因為我都話，嗰陣時我剩--嗱，未買之後我係咪攞走咗一橛㗎，剩番一部分㗎？

官：唔，唔。

答：就係嗰百鬆啲萬，嗰百鬆啲萬，咁嗰百鬆啲萬，咁如果我用，就算買埋，畀晒所有嘢，其實唔係剩好多㗎咋。

官：唔。

答：即係可能100,000鈫都冇㗎。

官：唔，唔。

答：咁100,000鈫都冇，HSBC又降grade，降grade，跟住我喺香港都要生活，即係喺嗰段時間係我都要使費㗎嘛，咁所以用完，跟住就close咗喇。

官：理解，喀。

答：喀。

官：咁但係，我哋唔明嘅，就係，如果係咁，咁點解，妳呢一句，唔係咁寫呢？因為，譬如，第一，妳呢度用個字眼係depleted。變成零先叫depleted吖嘛。變成仲有$100,000就唔係叫depleted喇。係喇，depleted即係變成零。咁呢度就講到好似係完全零鈫嘅，買完一毫子都冇，咁呢個第一點喇。第二點，係個步驟。妳直接叫滙豐銀行刪咗個戶口，就冇講先被降級，隔咗一陣先至叫佢刪...

答：呀，我...

官：咁有兩個出入呀！妳明唔明呀？

答：我明，我明。

官：咁點解呢，點解會咁樣呢？

答：嗱，我明你意思，我明你意思喇。

官：喀，喀，喀，喀。

答：因為我寫呢份嘢嗰時係係2021年寫，係咪？2021年寫，要諗番2005年，明唔明呀？

官：唔，唔。

答：2021年先諗番起，我跟住買樓，買完之後close咗account，即係我嗰時係咁樣，寫嗰時係咁樣，二零一--諗番嗰段時間，總之我係呢個戶口係冇咗，買完就冇咗，我係咁樣諗，即係寫嗰個時候係咁樣諗嘅。

官：明白。

答：而家--你而家咁講話呢，要我咁講番呢，咁講番，你覺得同呢度係有--係有--係有出入，我係--即係係我都理--我都理解你點樣諗。

官：咁等我又再講清楚啲我個理解，等妳可以確認下我個理解。即係妳嘅理解就係，當時真係咁諗嘅，當時覺得咁先係正確嘅，而家2024年4月審訊再諗就發覺個… 寫法… 係不準確？

答：係喇，即係你提番我，咁我就覺得不正確喇，當時我寫話買完樓，close咗account。

官：好。

答：咁而家你諗番，你話剩番，係有剩到錢，因為佢HSBC自動降grade，咁我嗰陣時我嗰段時間係我--係我喺香港係有使到錢嘅，咁我使咗，買咗呢樣，買嗰樣，唔係好多，close埋佢喇，就唔好第日條尾--因為逢係戶口，你嗰個月唔出唔入，HSBC一定收手續費。

官：呢個我都理解嘅。

答：喀。

官：但係跟住我幫大律師問埋下一條問題喇。

答：喀。

官：就係妳第一次發現36.1段呢個最屘嗰句嗰個寫法不完全準確，即係唔係話妳虛假陳述，啲嘢唔完整呀...

答：係。

官：唔完整喇，喀，最低限度唔完整，或者話，第一次發現，係我解釋先發現，定係早啲㗎，幾時第一次發現妳個寫法係不完整？

答：你而家--頭先你而家咁話畀我聽。

官：之前唔知嘅？

答：唔知，你而家咪話「點解咁呀，又之前講嘢咁呀？」我而家先睇到囉。

官：明白。”

80.  So, the criticism of Mr Tam was on something minor, namely, D’s oral evidence on the procedural steps taken by D in closing her HSBC account was not accurately stated in D’s WS. In D’s WS, the drafting made the reader think it was a one-step process, when the truth is, it was a three-step process. There are numerous possible reasons why this minor problem existed. Looking at how absolutely horrendous the overall drafting of D’s WS was, the most probable reason was an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously. In my view, this is regrettable, but immaterial as far as my own assessment of D’s evidence is concerned. Whether D closed her bank account in just one step, or a million separate steps, or indeed whether D closed her bank account at all, has no bearing whatsoever on the real issues in dispute in this litigation. So, the whole point made by Mr Tam is in fact a red-herring. I have most cautiously considered, and repeatedly reflected upon, Mr Tam’s point, but I reject it as a wholly immaterial observation.

81.  In my view, none of the points made by Mr Tam as discussed above made D any less reliable as a factual witness, even if we were to add them all up and consider all such points cumulatively and collectively. Nil plus nil is still nil. At most, since most of the points identified by Mr Tam on behalf of P during cross-examination and closing submission were the result of an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously, D should be deprived of any award of costs irrespective of the substantive outcome of these proceedings. In my view, that is the most appropriate way of dealing with this, and I shall come back to this when I write about costs below.

82.  All in all, therefore, despite Mr Tam’s diligence and eloquent persuasion, and having fully considered the totality of D’s evidence, I have come to the firm view that D’s evidence was more reliable. I find as a fact that the entirety of D’s sworn evidence before me was true, and I shall rely on it in determining the three main issues in these proceedings, namely (1) the proportion of the parties’ respective beneficial interests in the Property; (2) whether P’s behaviour was tortious; and (3) what relief, if any, should be granted by me to the parties.

Issue 1 – Beneficial Ownership?

83.  The first and most important issue which I must decide in this case is the proportion of the parties’ beneficial interests in the Property. As in all CICT cases, I should start with the parties’ pleadings.

84.  The parties’ pleadings are, with respect, horrible.

85.  The gist of P’s case is to be found in §11 of P’s ASoC, which reads as follows: -

“11. During the material times, [P] and [D] communicated with each other through international direct telephone calls. After the discussions between the parties, they had formed the common intention (“the Common Intention”) that:

11.1.  [P] would continue to be responsible for looking for the suitable flat;

11.2.  [D] would contribute a lump sum of HK$1,000,000.00 towards the acquisition of the Property and no more;

11.3.  [P] would settle the rest for the acquisition money including the balance of the purchase price, repayment of mortgage instalments, legal costs, estate agent commissions, and all the outgoings and maintenance of the Property;

11.4.  [P] would reside in the Property as his residence constantly;

11.5.  [D] and her daughter would stay in the Property for around 2 weeks each time whenever they came to Hong Kong to visit the parties’ parents and other relatives every 2 to 3 years;

11.6.  In case [P] married and had children, and no room in the Property was available for [D] and her daughter when they came to Hong Kong, [P] and [D] would further discuss the arrangement by then;

11.7.  In the event that the Property was sold and there was a net profit, the proceeds of the sale shall be divided on a pro rata basis according to their respective contributions towards the Property at the time of the sale.

11.8.  On the other hand, if there was a loss at the time of the sale, [D] would be entitled to her initial contribution of $1,000,000.00 and [P] should have the remaining balance of the net proceeds of sale.”

86.  Just by considering the reasons already set out by me in §§22, 55 & 56 above, without more, I dismiss P’s case on this issue. P had been fairly cross-examined on those points, and P had no acceptable answer vis-à-vis those points[51]. Despite the fact that P worked for a bank, and despite the fact that on the Meeting Date P & D were both inside a solicitors’ office with access to Solicitor Ho, there was not a single piece of paper recording, in a contemporaneous manner, P’s version of the common intention. I find that dispositive. On that ground alone, I find P’s case so extremely unlikely to be true, it is virtually an impossibility. In my view, P’s case on beneficial interests is simply false, and I so find as a fact.

87.  I should, by way of obiter dicta, further explain why I said P’s ASoC was horrible.

88.  Firstly, as is so very common, P’s case is based on the alleged existence of an oral agreement vis-à-vis the terms of buying land. In effect, therefore, P was asking this court to enforce the terms of an oral agreement concerning land “through the backdoor”. As I stated in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933, and in Pang v Pang [2023] HKDC 1346, the law in principle allows litigants to do so. See also Lewin on Trusts (20^th Edition), §10-074, or Clough v Killey and Ors (1996) 72 P & CR D22. However, any litigant who attempts to enforce an oral contract vis-à-vis land through the backdoor in this manner should inform the court, and his opponent, within his pleading, what according to the litigant’s best recollection were the words used, and he should give full particulars of the alleged oral conversations. P had never done so. There was a conspicuous void in relation to this in P’s ASoC. In my view, that was unacceptable.

89.  Secondly, as I had mentioned in §69 above, P had never made it clear in P’s ASoC whether, on P’s case, the parties had agreed or worked out with any degree of clarity just what category of expenses would qualify as “contributions towards the Property” for the purpose of the alleged oral agreement. By way of example, at §§23 & 24 of P’s ASoC, P said property insurance premiums should count as “contributions towards the Property” for the purpose of his version of the common intention, but this was never explained. Was this orally and expressly discussed between P & D in those telephone calls in 2005? If so, which person uttered what words? If not, why should insurance premiums count? What about payments for fixtures such as air-conditioners, window-frames, doors, electric sockets, pipes and the like? How about lights? P’s ASoC is silent on these pertinent questions and is unacceptably over-simplistic.

90.  On the other hand, the gist of D’s case is to be found in §11.3 of D’s AD&CC, which reads as follows: -

“11.3. As a result of these discussions between [P] and [D], they had formed a common understanding (“Common Understanding”) that:

11.3.1.  [P] would choose any property at any suburb in Hong Kong at a price range affordable by [D] in respect of the initial payment;

11.3.2.  [D] would provide initial payment for the acquisition of the property and [P] would settle the rest including the mortgage repayment, estate agent commission and all the other expenses related to the property;

11.3.3.  [P] would occupy and reside in the property as his longer term residence without any requirement to pay rent to [D];

11.3.4.  [D] and her daughter / Miss Chung would stay in the Property for free whenever they visited Hong Kong;

11.3.5.  in the event that [P] got married and had children, the parties would sell the Property and split the sale proceeds equally; and

11.3.6.  the share of and interests in the Property would be split equally between [P] & [D].”

91.  As I had mentioned in §41 above, the parties had placed D500 – the Assignment of the Property dated 3 October 2005 – before me. I can see that it was a contemporaneous written record that P & D were “Tenants in Common in equal shares”, and this was consistent with D’s pleaded case that that was the common intention. Just like the situation in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§§38 to 40, per Au JA), which was a well-known Court of Appeal decision previously applied by me in Pang v Pang [2024] HKDC 110, in our present case it was for P to prove anything other than the recorded 50/50 division should P want to, and D had no burden to prove anything. Nor would D ever need a different piece of paper recording the intended 50/50 division when the Assignment would by itself be more than sufficient for that purpose. Having considered this, and what I have already stated at §§37 to 82 above, I find as a fact that §11.3 of D’s AD&CC is true and the parties’ common intention had always been for the Property to be owned by them on a 50/50 equal division basis, both at law and in Equity. In fact, the dismissal of P’s case for the reasons set out above was already dispositive, and strictly speaking I need not even consider D’s case on the same issue substantively.

92.  For completeness, I should add, by way of obiter dicta, that I am equally disappointed by the drafting of D’s AD&CC. In my view, there was an inexcusable collective failure on the part of D and her solicitors (Mr Tommy Cheung, counsel for D, did not settle D’s terrible AD&CC) to draft D’s AD&CC with proper consideration of the well-known proviso in Order 18 rule 7(2) of the Rules of the District Court (Cap 336H) which, so far as relevant, said: -

“…the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation must not be stated, except in so far as those words are themselves material.”

[Emphasis added]

93.  Since D’s AD&CC was a “pleading subsequent to a statement of claim”, the above well-known proviso must be read in conjunction with Order 18 rule 8(1) of the Rules of the District Court (Cap 336H) which, so far as relevant, said: -

“A party must in any pleading subsequent to a statement of claim plead specifically any matter… (a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.”

94.  Also of tremendous importance was Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) which, so far as relevant, said this: -

“… every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing… (b) where a party pleading alleges any condition of the mind… particulars of the facts on which the party relies…”

95.  The learned editors of Hong Kong Civil Procedure 2024 were entirely correct to say in §18/12/21 of their work that “intention” qualified as “condition of the mind” for the purpose of Order 18 rule 12(1)(b) so that it must be pleaded with proper particulars. I would add that for the purpose of that specific paragraph of their work, “overt acts” included the utterance of oral words so that if any litigant would like to rely on oral words to prove the existence of a CICT or any “common intention” of any kind, those oral words would themselves be material to the litigant’s own pleaded case and should be pleaded by that litigant verbatim.

96.  On the facts of our present case, prior to the exact date of this judgment, the parties plainly did not know my ultimate view on materiality, as I genuinely kept an open mind, and told the parties so[52]. D and her legal team could not possibly know what was in my mind when I had not myself decided what I thought of the parties’ arguments.

97.  Accordingly, when the various statutory pleading rules set out above are read together, it is crystal clear the exact words orally uttered by the parties prior to the registration of the Property in their joint names were, on D’s own pleaded case at least, material words which should have been set out in D’s AD&CC, verbatim, in their original language (ie Cantonese). D and her solicitors had never done so. I had to wait until Mr Keith Tam’s cross-examination of D to be informed, for the first time ever, what to D’s best recollection were the actual Cantonese words used. In my view, that was “not ideal”, to say the least.

98.  Solicitors handling CICT litigation need to pay more attention to what was said by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) and take full instructions on “express discussions” at the earliest possible stage of the litigation, and give serious thoughts as to whether, in the circumstances of the case they are handling, it would be desirable to plead the exact words used verbatim, in the original language of the alleged conversation. Just summarizing or paraphrasing a discussion in a completely different language may well lead to substantial difficulties at the trial itself[53]. Whilst in our case, as it turned out, as I had explained in §§39 & 55 above, I considered the inaction of P inside Solicitor Ho’s office in Hong Kong on the Meeting Date dispositive, and substantially more important than all words actually uttered, the better practice would still be for D and her legal team to have set out at least some of the conversations in question verbatim, within D’s AD&CC itself.

99.  Finally, on the issue of 50/50 division, I have not forgotten the fact that Mr Keith Tam, trial counsel for P, took issue with this part of D’s evidence[54]: -

“問：咁即係咁樣講喇，係咪真係反映呢個五五分權個註冊--sorry，我哋再嚟一次，其實呢個五五咁樣分配方法呢，咁樣去登記嘅方法其實唔係真係反映到妳同Raymond就住物業嗰個實權嘅分配嘅，妳同唔同意？

答：唔，有冇反映，即係如果你咁講呢，係反映到雙方實際畀幾多都係反映唔到，如果咁講，即係Raymond呢，你哋睇到個數字，每個月因為佢--因為佢有畀錢，有個數字，你係睇--你係睇得到，譬如佢交過啲乜費、乜費、乜費，你係睇得到，但係我畀嗰嚿錢有inflation，你哋係冇--係冇計落去，咁其實如果聽你咁話，雙方都反映唔到，你--咁你又同唔同意呀，你明唔明我講乜先，我--我--可能我表達能力差咗。

官：即係，田土廳，五十五十呢個紀錄，唔係準確反映任何一方嘅案情，係咪咁講呀？

答：係喇。

官：明白。”

100.  That evidence of D was true in the sense that the record in the Land Registry only showed the 50/50 division, but not the remaining terms of the parties’ oral agreement pleaded by D in §11.3 of D’s AD&CC, such as terms as to the parties’ responsibilities over estate agent commission, or as to their arrangements over the actual usage of the Property. The public record in the Land Registry was “just consistent with, but not identical to,” D’s pleaded case. What D said was obviously entirely correct, and nothing turned on it.

101.  On re-examination by Mr Tommy Cheung, counsel for D, D said this[55]: -

“問：呢條問題問多妳一次喇。咁究竟田土廳入面紀錄寫住百分之五十五十呢，或者，即係，我哋睇得到係百分之五十五十嘅意思喇，其實，係反唔反映到，妳喺呢個案件入面嘅案情呀？

答：田土廳反唔反映到呀？我係--我係--而家我想爭嘅就係跟番田土廳個百分之五十。

問：係，感謝妳嘅答案。

答：喀，我係跟番田土廳嘅百分之五十。”

102.  What D said above was also entirely correct, and nothing turns on it. Whilst Mr Keith Tam, counsel for P, tried to persuade me the answer above showed that D’s case was just D’s wishful thinking, on careful study of the materials that was a rather unfair way of interpreting D’s answer. In my view, we must all remember the factual and procedural background and put D’s answer in its proper context. What happened was that in P’s ASoC, P specifically asked for a declaration on the parties’ respective interests in the Property which, if granted, would in substance be a declaration that the 50/50 division recorded in the Land Registry was inaccurate. As a reaction to that, in D’s AD&CC, D prayed for a declaration which, if granted, would in substance be a declaration that the 50/50 division recorded in the Land Registry was entirely accurate. Accordingly, in my view, when D said “我想爭嘅就係跟番田土廳個百分之五十” [Translation: “What I would like to fight for is to follow the 50% record in the Land Registry”] she was just saying, truthfully, that she would like to fight for the declaration she prayed for in her AD&CC. Bearing in mind D was just a lay person (and never a litigation lawyer), I can see nothing wrong with the way she answered that question, or with any other part of her oral evidence generally.

103.  I shall thus be granting appropriate reliefs (including an order for the sale of the Property pursuant to the Partition Ordinance – Cap 352 – see the discussion on Issue 3 below) to D on the basis of my finding that the parties’ common intention had always been for the Property to be held and owned by them on a 50/50 equal division basis, exactly as pleaded by D in her AD&CC.

Issue 2 – Was P’s Behaviour Tortious?

104.  The second issue which I had been asked to decide in this case is whether certain things said to have been done by P had indeed been done by P and if so whether P’s behaviour, as proven by the evidence before me, legally amounted to a commission of the tort of intimidation and/or the tort of harassment.

105.  This could have been an easy issue. However, the inexcusable collective failure on the part of D and her solicitors (and it must be pointed out Mr Tommy Cheung, counsel for D at the trial, did not settle D’s terrible AD&CC) to take their drafting work seriously, and to perform the drafting competently, created substantial difficulties which should never have been present. In fact, in terms of time allocation, I ended up spending more time on this issue.

106.  In gist, as I had said above, Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H), so far as material, said this: -

“… every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing… (b) where a party pleading alleges any condition of the mind… particulars of the facts on which the party relies…”

107.  The tort of intimidation and the tort of harassment had mental elements which, by reason of the above rule, must be particularized. D had never done so, within the AD&CC or at all. Whilst P never sought further or better particulars of the allegations, and P never sought to strike out D’s AD&CC, Mr Keith Tam, counsel for P, had in §§66.2, 66.3, 68, 77 and 78 of his written opening for the trial repeatedly objected to the way in which D had been trying to run her case on these torts without first amending the AD&CC or inserting the necessary particulars. Having read those parts of Mr Tam’s written opening, D and her legal team nonetheless chose to make no amendment application, and chose to fight D’s case on what was plainly a defective pleading. This created substantial difficulties.

108.  For the purpose of explaining why D’s AD&CC is in my view plainly defective, I must start by explaining the constituent elements of the two torts in question by reference to what was said by Mr Justice Anthony Chan in the well-known case of Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 (§§43, 56 to 70) which went as follows: -

“… Tort of intimidation… There are three elements of this tort – unlawful threat, intention to cause harm to the claimant with the threat and damage to the claimant...”

“… Tort of harassment… What are the parameters of this tort? First, I respectfully adopt the observation made by Lee JC in Malcomson in connection with the definition of harassment at 464F: -

For the purposes of this application, I shall take the term ‘harassment’ to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person. This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

… like most of the established tortious causes of action, there should be a mental requirement of the wrongdoer as well as damage to the victim in order to constitute the tort of harassment.

… In respect of the former, I do not believe that it is necessary to show intention on the part of the wrongdoer to cause injury to the victim. The lower threshold of recklessness as to whether the victim would suffer injury from his act would suffice… ”

109.  So, the constituent elements of the tort of intimidation are (1) unlawful threat; (2) intention to cause harm to the claimant with the threat; and (3) damage to the claimant. It is clear to me that D’s AD&CC did not contain any averment explaining in what way or for what reason the alleged threat was said to be “unlawful”, or what matters would be relied upon by D to say P’s intention (which was a condition of the mind) must be to cause harm. Whoever drafted D’s AD&CC (not Mr Cheung) plainly did not take the drafting task seriously, and failed to perform the drafting competently. It is almost as if an irresponsible person left the entire task to an unqualified intern who never even read law, and never bothered to check the product’s compliance with Lau Tat Wai or the RDC. The sloppiness in the drafting was shocking, irresponsible and utterly unacceptable. I was very surprised by this, given how easy it must have been to get this done correctly. Even if D’s solicitors somehow did not know how to comply with Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H), or have never even heard of these simple and fundamental pleading rules, they obviously could have sought competent counsel’s advice and assistance pursuant to and/or in full compliance with Commentary 6 to Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve their clients competently, in a conscientious, diligent, prompt and efficient manner, including seeking counsel’s assistance in a timely manner, whenever it would be necessary or desirable to do so.

110.  The constituent elements of the tort of harassment are (1) a course of conduct sufficiently repetitive in nature as would cause emotional distress or annoyance to the victim; (2) deliberate intention to cause injury or recklessness – not caring whether the victim would suffer injury; and (3) damage to the victim. Again, D’s AD&CC did not contain any averment explaining why the course of conduct in question qualified as “sufficiently repetitive”, or whether D was alleging deliberate intention or recklessness, or if D’s case was recklessness (which was a condition of the mind as well) what matters would be relied upon by D to say P did not care about injury, etc. The sloppiness in the drafting vis-à-vis this alleged tort was shocking, irresponsible and utterly unacceptable as well. I was similarly surprised by this, again because of how easy it must have been to get this done correctly. I repeat what I have said about Commentary 6 to Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct above. In a nutshell, if a solicitor is himself/herself incompetent, his/her duty is to seek appropriate assistance in a timely manner.

111.  If the evidence did not show P’s commission of either of these two torts, I would have no problem dismissing D’s counterclaim in relation to this. As it turned out, the evidence showed P might have committed both of these two torts, or one of them. So, what should I do? Should I shut my eyes to the clear evidence just because D never pleaded her case properly, or should I focus on the evidence and enter final judgment against P based on these two torts notwithstanding the shocking defects in D’s AD&CC?

112.  The evidence against P was overwhelming.

113.  The parties were in agreement that on 17 August 2018, P sent two voice messages recorded by P in Cantonese (“the 2018 Messages”) to D, via WhatsApp, the transcribed words of which went as follows[56]: -

“我強調一點，過去半年我搵咗鐘點工人抹咗間屋。每一格地方，抹到乾乾淨淨過去呢半年鐘點工人。廚房啲廚具萬幾蚊一套，千祈唔好搞。市面上買翻萬幾蚊一套。你整污糟咗，去唔到我個standard，我會掟人落街。我再強調多一次我要求清潔整齊相當高㗎。”

“我係非常之鍾意乾淨。你唔鍾意，你可以坐低同我傾。我要求相當高，我會掟人落街。你可以報警，你可以同你律師去研究我呢句說話，我歡迎，我絕對歡迎。”

114.  As I had informed the parties on 23 April 2024[57], I listened to the actual audio recording. I verified the transcription as accurate, and paid attention to the threatening tone used by P when he was recording the 2018 Messages.

115.  Given the threatening tone used by P, P’s usage of the phrase “我會掟人落街” [“I will throw people down the street”], whether tortious or not, was shockingly disturbing. In fact, P’s behaviour was so disturbing I became extremely concerned whether P committed the statutory crime of criminal intimidation under Section 24 of the Crimes Ordinance (Cap 200), and specifically warned P of the fact that his voluntary sworn oral evidence in this civil trial could be used against him in a criminal prosecution against him under the “declaration against self-interest” exception to the hearsay rule[58]. P chose to ignore my warning.

116.  In fact, when asked about this, P said the following[59]: -

“問：點解你會同家姐講呢句說話？

答：我呢啲氣話啫，佢激嬲咗我，佢嗰啲挑釁嘅語言，隨口而出。

問：你成年人嚟㗎，係咪？

答：係。

問：你可以--就算挑釁喇，即係我哋唔接受，就算挑釁，你都可以用其他嘅字眼吖，係咪？

答：當其時我工作好急，我冇特別考慮應該用咩嘢類型嘅字眼修飾而出街。

問：你當日有冇諗過其實你咁樣講嘅時候，你家姐會覺得用你--同佢一齊即係買呢個單位，如果做到一啲嘢你唔--即係你唔滿意嘅時候，可能會有一啲即係好唔好嘅後果㗎喎，甚至係可能會--即係身體會受到傷害㗎喎，你有冇諗過即係你家姐可能會咁樣嘅諗法？

答：麻煩你重複一次。

問：即係你講呢句說話之前喇，有冇諗過你家姐可能喇，可能會覺得佢用呢個單位，同你聯名㗎喎，即係都係分權擁有，用得你唔滿意嘅，即係去唔到你個standard嘅，可能會有一啲唔好嘅嘢發生，包括身體傷害，即係家姐可能會有呢個咁嘅諗法㗎喎。

答：冇諗過。

問：你成年人，有咁多處世嘅經驗，你係可以諗到㗎嘛，你接唔接受？

答：當其時我冇深下去諗過呢個後果，唔。

官：咁而家呢？隔咗咁耐喇，你而家諗唔諗到可能講者無心，聽者有意呢？

答：係。

官：而家係諗到嘅？

答：係。

官：咁你有冇就住你嘅字眼道歉？

答：可以。

官：唔係。有冇呀？曾經呀？由今日之前開始倒數番當年講咗呢啲說話，到而家喇，有冇話「經過反省之後，我覺得咁樣講都唔係咁啱，對唔住。」有冇？

答：今日有。

官：直到今日先有，今日之前呢？

答：今日之前，就算我話可以做到，但係我同邊個講呢？

官：唔係。有冇做過先？先搞咗個事實上嘅問題。有做過，即係有講過「對唔住」，定係冇？

答：我係冇講過「對唔住」，因為之前。

官：冇嘅？

答：係喇。

官：點解？

答：我都接觸唔到佢。

官：點解接觸唔到啫？有律師代表吖嘛！叫律師寫封信道歉咪得囉。香港有《道歉條例》，道歉唔代表承認法律責任㗎嘛！你可以道歉㗎？點解唔道歉？

答：我唔知有條條例冇--對唔住。

官：唔係。唔係對唔住嘅問題。我想理解吓你嘅證供呀！即係你頭先啱啱答大律師條問題，就係話當時諗唔到吖嘛。

答：唔。

官：咁但係當時還當時吖！咁而家呢？你而家又話畀我聽你而家諗到，咁但係唔會係呢一秒先諗到㗎喇！好耐㗎喇嘛呢單官司，由開案到而家都四年喇！

答：唔。

官：咁點解一路都冇道歉嘅？我唔係好明喎！即係你有冇解釋點解到而家都唔道歉？

答：我唔知道可以道歉囉。

官：你幾多歲呀？

答：59歲。

官：59歲唔知講完嘢可以道歉。你真係咁講？呢個真係你既證供？59歲唔知可以道歉。肯定？我畀多次機會你喇。

答：哦。

官：唔道歉咩嘢原因呀？

答：我係唔知道可以透過律師樓做呢個方法。

官：咁未有律師之前呢？都可以自己道歉㗎？

答：未有律師之前...

官：你家姐嚟㗎嘛！親生家姐嚟㗎嘛！你唔好話畀我聽你由出世到而家未同佢溝通過呀！一齊大㗎嘛！講句「對唔住」有幾難呀？但係又冇喎！點解呢？

答：（沒有可聽到的回答）

官：冇解釋？

答：冇解釋。

官：會唔會係你到而家呢一刻都仲想傷害佢呀？

答：冇。

官：即係呢個唔係個原因，即係呢個唔係你冇道歉嘅原因？

答：冇道歉...

官：即係我而家一路都仲係理解緊點解你唔道歉吖嘛，咁你又冇解釋喇，咁我諗一個出嚟睇下係咪喇，可以係，可以唔係㗎，我要聽你講先知。

答：唔，唔。

官：咁我諗到其中一個可能性，可能性咋，我唔係話係真，可能性就係其實你到而家都想傷害佢囉，咁所以你咪唔道歉囉，道歉咗就冇咗個傷害吖嘛，咁所以你係刻意唔道歉，加大嗰個傷害，繼續個傷害，咁呢個係可能性之一嚟嘅，咁我要知係咪㗎嘛，咁係咪？呢個係咪...

答：唔係，呢個唔係。

官：唔係，唔係。

答：唔。

官：咁睇番個字眼先喇，「掟人落街」咁樣，大律師都問你即係點解揀呢個字眼呢，咁我會諗喇，即係我用生活經驗同常識嚟諗啫，正常人講嘢呢，都會諗下個後果嘅。

答：唔。

官：即係譬如--我精通廣東話嘅。我喺香港大嘅。好多人好鍾意講一句說話，「你盲㗎」。香港人好鍾意講㗎嘛。但係如果嗰個人係真係盲嘅，你又唔會咁講嘅，係咪？即係你唔會對住一個盲嘅人講「你盲㗎」，即係崩口人忌食崩口碗吖嘛呢啲叫做。

答：係。

官：咁所以選擇用咩字眼去講嘢都睇對象嘅。亦都睇個場景嘅。如果你同一個普通人講「你盲㗎」，佢又會覺得冇嘢嘅。大家都知佢唔係盲㗎喇！咁所以呢句說話就冇乜傷害。如果嗰個人真係盲嘅呢？你咁樣講呢，佢就可能好傷心，因為你中咗佢要害。

答：唔。

官：咁我睇到「我會掟人落街」呢幾個字呢，就有啲擔心嘅。當時個腦究竟諗緊咩嘢？因為個場景就係--即係當年，套番落去，第一，你家姐真係有個過咗身嘅丈夫。即係佢有個親人過身嘅經驗。佢對死亡呢，可能係有啲恐懼。第二，佢有個小朋友。咁一個人有小朋友又可能對於生命呢，就有一啲即係不相同嘅睇法，可能比較注重生命。第三，你個單位高層嚟㗎喎，29樓，即係如果你住ground floor，地下或者1樓，掟人落街，聽完笑咗佢喇！29樓掟人落街會死。咁呢三樣嘢就係當時存在嘅客觀事實嚟嘅。三樣都係事實。咁喺呢個場景、呢個情況，你講「我會掟人落街。」喀，咁個「人」又唔會係你自己㗎？又唔會係講緊求其搵個人掟人落街㗎？你29樓去邊度搵個人掟落街？咁你會唔會有諗過佢聽完之後會驚？

答：當時我冇諗過，唔。

官：咁你有冇諗過呢度講個「人」，你講嘅時候諗咩嘢都好，佢聽落去會覺得你係講緊佢或者佢個女，掟人落街個「人」？我想理解下。

答：我冇諗到咁遠話涉及到佢個女，我只係係佢本人。

官：咁你而家2024年諗番喇，你講「我會掟人落街」，你覺得即係而家你嘅認知，2024年嘅認知，你咁樣講，你估聽嗰個人會覺得你個「人」字係講緊邊個人？

答：（沒有可聽到的回答）

官：諗唔到定係點？

答：諗唔到。

官：如果--即係畀個建議你喇。其實任何一個人聽到「我會掟人落街」，第一個諗到嘅係自己，即係你家姐，你講就講「我會掟人落街」，佢聽落去解說或者意識到嘅就係你諗住掟佢落街，即係如果套番落個場景，呢個可能係佢主觀感覺會係咁樣，你同唔同意？

答：同意。

官：同意，喀，咁你當時有冇意識到--即係而家講緊而家喇，你同意喇，當時你有冇意識到你掟人落街個「人」你主觀地，你自己諗住嗰個人係邊個都好，聽嗰個人會覺得係講緊佢自己？

答：可唔可以重複多一次？唔該。

官：你講呢句說話嘅時候，你主觀地諗住個「人」字咩嘢意思我哋唔講。

答：唔。

官：你會唔會覺得聽嗰個人或者睇嗰個人，聽又好，睇又好喇，會覺得你講「我會掟人落街」嗰個人就係對方，即係你家姐？

答：同意嘅。

官：同意嘅，喀，咁點解照講？你係咪想傷害佢？

答：我唔係想傷害佢。

官：咁點解照講呢？你諗到你講「我會掟人落街」，佢會諗到係你會掟佢落街，即係細佬掟家姐落街，咁你諗到佢會係咁諗，但係你又照講，背後嘅原因係咩嘢？

答：我衝口而出。

官：衝口而出。咁你講完有冇後悔？

答：當時冇。

官：即係畀機會你講多次，你都會再講同樣嘅說話，都係講「我會掟人落街」，冇後悔過？

答：第二次我唔會再講。

官：第二次唔會再講...

答：即係我嘅意思就話呢段聲音出咗街，你提問我嘅時候話有機會會再講一次，我話我唔會再講囉。

官：如果係咁，我就更加唔明喇，點解唔收番句說話，或者道歉？你59歲㗎囉喎，你唔好話畀我聽你唔知你可以即係收番一句說話，或者講對唔住，明星講錯嘢都會開記招講對唔住喇！

答：唔。

官：咁你講咗一句嘢，親家姐聽落可能係覺得有恐嚇性，驚嘅，咁你又知喇，點解唔同佢講句對唔住，或者收番句說話，仲要抗辯添，即係點解呢？我唔係好明。

答：咁佢2019年返嚟佢冇提過呢件事，完全。

官：道歉要人提嘅咩？自己道歉唔得㗎？即係我唔理解呀。我唔係怪責緊你。我唔理解。我唔理解你嘅行為。如果係冇惡意嘅，如果係後悔嘅，咁點解唔講對唔住呢？會唔會唔講對唔住個原因係一個邪惡嘅原因，就係你好Q憎佢，你想佢繼續驚？有咁驚得咁驚？驚到而家？以後都驚？所以就繼續唔道歉，「係呀，我講呀，我真係會掟人落街㗎。」即係個事實係咩嘢？你係咪有啲咁嘅邪惡原因喺個腦入面？

答：冇呢個邪惡原因，咁如果佢真係恐慌嘅時候，佢2019年返嚟時候可以同我講番，「你上次番說話好冒犯我，我會採取其他行動，可能而家我要報警，一係你就而家道歉。」佢完全隻字不提。

官：咁你知佢報咗警㗎嘛，係咪？

答：之後佢嗰個報案冧把唔知佢代表乜嘢。

官：你覺得係代表咩嘢？有個報案冧把，除咗係報案之外，可以代表咩嘢？

答：唔係，我唔知個報案冧把裡面係報啲乜嘢呀，佢有個報案冧...

官：可以係咩嘢呢？

答：吓？

官：...你覺得？喀，喺你個腦海入面除咗呢件事之外，可以係咩嘢？

答：唔知，真係唔知。

官：有冇諗過可能就係因為佢真係驚，所以報案，要求警察保護？

答：冇諗過，因為啲報案冧把係之後至喺文件證供至睇到嘅，我都唔知係報...

官：咁睇完之後你有冇做任何嘢？話「咦，會唔會係我嚇親人呢？道個歉先。」有冇㗎？

答：冇諗過。

官：冇喇，係咪？喀，點解？

答：我都話個報案冧把代表乜我真係唔知。

官：即係只要佢唔要求道歉，你就唔會主動道歉咁樣？

答：（沒有可聽到的回答）

官：係咪咁樣，個事實？

答：因為佢2019年返嚟時冇任何提供話驚，受過恐嚇嗰啲喎，所以可能就唔係...

官：唔係。你答我條問題喇，我條問題係...

答：好。

官：係咪佢唔主動要求道歉你就唔會道歉？呢條係條問題...

答：我可...

官：...咁個答案係咩？

答：（沒有可聽到的回答）

官：個答案係咩？

答：是嘅，法官。

官：係嘅？

答：係嘅。

官：點解？點解唔主動道歉？

答：（沒有可聽到的回答）

官：如果大律師結案陳詞嘅時候同我講，原因得一個，你真係想佢驚，當時係想佢驚，而家又係想佢驚，你背後嗰個動機，講呢啲說話嘅動機係邪惡嘅，咁你有咩嘢想講？

答：我動機並不是邪惡，真係衝口而出嘅啫。

官：唔。

答：唔。

官：明白，即係你會否認呢個指控，係咪？

答：喀，我冇諗過會傷害佢任何一樣嘢。

官：唔，冇諗過會傷害。咁先唔好講佢驚唔驚先喇，變一變個話題，你會唔會覺得佢除咗--即係撇開驚唔驚，會唔會覺得精神有啲困擾呢？即係有啲唔開心，有啲--精神上嘅困擾喇，呢個最好㗎喇，呢個字眼，有啲精神上嘅困擾，呢個你會唔會諗到係會有㗎？

答：我喺2019年3月見佢本人嘅時候呢，佢精神各方面係無異嘅...

官：唔係。事實上有冇係另外一件事喇...

答：好。

官：...遲啲先再講，我講你講呢句說話嘅時候，你會唔會諗到聽嗰個人呢，係應該會精神有困擾呢？

答：唔會。

官：即係你覺得聽嗰個人聽到「我會掟人落街」係精神上係唔會有困擾嘅？

答：我平時都聽到好多唔--唔--好難聽嘅說話，我自己都覺得冇乜嘢。

官：即係你用自己嗰個精神健康，去衡量對方嗰個精神健康，咁你就覺得，既然你係承受到呢啲說話，人哋就承受到呢啲說話，咁樣呀？

答：我嗰啲十倍添喇，如果我聽人哋啲唔好聽嘅說話，即係喺我身上。

官：咁如果大律師結案陳詞嘅時候同我講，唔係嘅，其實你一定知道，清楚知道，即係講緊當時呀。

答：唔。

官：你講呢句說話呢，係會令到聽嗰個人係精神上係困擾嘅，甚至乎可能有心理上、情感上、精神上嘅傷害造成，咁你有咩嘢回應？

答：冇回應。

官：冇回應。得，咁我清楚理解你嘅講法，唔該你，thank you。”

117.  From the above, it seems crystal clear to me that by publishing the 2018 Messages to D in the manner as he did, P was making an unlawful threat (threatening to murder D by throwing D off the Property – the 29^th floor of a high rise building) intending to thereby cause harm to D with the threat. As we shall see when we look at D’s sworn oral evidence in relation to this, harm in the form of emotional distress (and/or harm in the form of never being able to enjoy the Property when D would otherwise be able to) was in fact caused to D as a direct result of this. All elements of the tort of intimidation appeared to me to be present and proven by the evidence.

118.  D’s sworn oral evidence in relation to this (which I accept as the truth) went as follows:[60] -

“官：咁妳收到妳細佬呢個訊息嘅時候個感覺係點呀？

答：我感覺嗰陣時呢震一震。

官：震一震。

答：喀，震一震，即係一種心寒呀。

官：心寒。

答：即係我話點解會為咗個廚房嗰個個廚具呀，嗰萬零鈫，講呢啲嘢呢？嗰時係好唔開心，直情覺得好似震一震，點解會咁講嘢呢？佢就跟住又話會搵工人每一寸地方抹得乾乾淨淨，即係你會--即係你會感--佢--佢係有係做咗一樣嘢發表出嚟「我係做咗啲乜嘢，我搵--我搵咗人做點點點」，或者佢買咗啲嘢返嚟，又即係驚住我會破咗佢啲嘢，係對住我講吖嘛，唔係話街嗰啲人吖嘛。如果既然對住我講，你嗰時覺得係咪好唔舒服吖，每個人聽完--譬如我對你某一個人講，你見到呢樣嘢，你個感覺又會點呢，你唔會覺得話係隨口噏呀或--又--又--又或者係--佢嗰個時候嗰啲係--係嚴重，即係特別宣布嚴重，鄭重宣布，我係感覺呢樣嘢嘅。

官：鄭重宣布同埋嚴重嘅。

答：係喇，係喇。

官：鄭重宣布同埋嚴重嘅。

答：即係鄭重聲明我係要咁咁咁，即係有時有啲嘢係我鄭重要做啲乜嘢乜嘢，你--即係你要聽住咁樣樣，要服從，我覺得佢係呢種係服從式嘅。

官：要服從，即係唔係講笑？

答：唔係講笑。

官：要服從，同埋唔係講笑。明白，理解，Yes。

…

…

官：咁妳聽到嘅時候，妳嘅詮釋，個人嘅詮釋，就唔係佢講咩喎，而係講緊妳個人嘅認知喎，妳聽到之後，妳覺得佢講緊乜嘢呀？

答：我覺得佢會係掟我落街。

官：即係佢就講掟人，但係妳收到嘅訊息或者妳個感覺就係佢講緊掟妳？

答：點解呢？嗱，我解釋。

官：係，請講，請講，請講。

答：因為個WhatsApp係畀我吖嘛。

官：係。

答：咁「個人」咁唔係掟我，掟邊個呀？

官：明白。

答：個WhatsApp係畀我吖嘛，咁我問喇「個人」係佢係指邊個先，唔通佢個WhatsApp話「我會掟阿容落街」，係咪咁講嘢吖，如果同人講嘢？

官：唔。

答：我同你講嘢會唔會話--如果我係--如果我係知你個名嘅，咁我都會話係--係--係「我會掟你落街」或者「掟人落街」，佢係咁樣寫㗎，佢係--我感覺就咁。

官：明白，即係妳同意客觀上字眼上係掟人，但係妳主觀感覺就係講掟妳咁樣？

答：係喇，係喇。”

119.  Whilst all elements of the tort of intimidation appeared to me to be present and proven by the evidence, I was and remain very concerned it could be wholly unfair to P if I were to allow D to build a case out of the evidence, in circumstances where D never gave P proper prior warning by pleading proper particulars in D’s AD&CC in accordance with well-known pleading rules, including Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H). Mr Keith Tam, counsel for P, covered this in his cross-examination of D, in this manner:[61] -

“問：有冇同妳律師講過妳剛才妳震一震、心寒嗰啲感受㗎，有冇講過㗎？

答：我--我--我係冇講呢樣嘢。

問：點解冇講呀？

答：咁我--我話我畀...

問：點解唔同律師講呀？

答：嗱，我嗰時我畀咗個WhatsApp律--律--個律--律--律師聽，話「嘩，咁樣樣」，咁個律師咪跟住寫囉，我又唔會講話--我冇講當--嗱，因為隔咗咁耐吖嘛，隔咗咁耐，有時啲嘢淡咗，咁你--而家你要嚟問--問番我當時嘅嘢吖嘛，有時寫文法上就話當時我就係咁樣樣寫咗上去，咁係咪--係咪好--係咪好重要呢，我就唔知。

問：其實文法唔使妳擔心㗎？份文件都係個律師根據妳指示幫妳準備㗎喇，係咪？

答：但係嗰時個律師係...

問：係唔--係唔係先？

答：係，係，係，係。

問：係，咁之後呢？

答：係。

問：係，妳個回應，然之後妳想補充乜嘢？

答：係，咁當時律師就話「妳寫番嗰日發生嘅嘢，即係3月11號嘅嘢呀」，佢咁同我講，「妳寫番嗰日嘅嘢喇」，跟住我就畀咗個WhatsApp律師，即係嗰--佢兩段，律師要寫番當日嘅嘢，就係--就係嗰時我就咁樣跟照做囉，我唔會問--嗱，律師又冇我點，係我--又冇問我當時個反應。

問：咁妳係擔心文法定係律師冇同妳講或者冇問妳，妳先唔講呀？

答：即係大家唔知道要--律師冇問...

問：係。

答：...我亦冇主動講...

問：係。

答：係我冇--我冇意識到係要講話點樣點樣呀...

問：好呀，咁即係妳個--即係妳--我--即係妳都知道妳嘅狀書都係冇講到就係如何感到被恐嚇嘅...

答：但係我...

問：...妳知唔知㗎，妳知唔知㗎？

答：我知，知。

問：係。

答：但係我有同我心理醫生講。

問：係，得，呢個遲啲會問妳㗎喇，不過妳狀書冇咁講嘅？

答：冇。”

120.  I accept D’s oral evidence, recited verbatim above, as entirely true. I accept D never gave proper or full instructions to D’s solicitors, and D’s solicitors never took proper or full instructions (or raised relevant and material questions) from D either. This was appalling. It was so appalling I seriously considered whether the handling solicitor should be reported to the Law Society of Hong Kong so that he or she could be investigated and prosecuted for his or her clear breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve their clients competently, in a conscientious, diligent, prompt and efficient manner. Not taking D’s proper or full instructions on the two torts in question for over 4 years (March 2020 to April 2024), not paying sufficient, or any, attention to the constituent elements of these torts by reference to what was said by Mr Justice Anthony Chan in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, and not complying with Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) in drafting a pleading, must each be a clear breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct. In my view, the incompetence was wholly unacceptable, and frankly rather shocking. However, all things considered, my ultimate decision is to focus on trying to bring some closure to the parties to this litigation, and to just leave it to D and D’s solicitors to work out any and all other issues amongst themselves. I shall therefore say no more about Principle 6.01, unless and save in so far as shall be necessary for the parties’ understanding of my ratio decidendi in this matter.

121.  Whilst I shall in due course be addressing what the law has to say about D’s attempt to build a case out of the evidence, instead of making an application to amend D’s AD&CC, for the time being I shall address the evidence on the tort of harassment.

122.  The evidence against P vis-à-vis P’s commission of the tort of harassment was just as overwhelming.

123.  It must first be recognized the tort of harassment was different from the tort of intimidation in many aspects. By way of example, in Law Ka Yan Thompson v Ho Kang Wing [2020] HKCFI 513 at §§38 to 39, Mr Justice Wilson Chan correctly stated that for the tort of intimidation, it was unnecessary to show any repetition. A single act which was never repeated would suffice. By sharp contrast, for the tort of harassment, the overt act in question must have been repeated, or there must be two or more separate acts collectively amounting to “a course of conduct”. That was applied by DDJ Alan Kwong (as HHJ Kwong then was) in Chan Woon Wah t/a Ngai Hing Decoration Company v Wong Chi Ping [2024] HKDC 422 (at §69). From the evidence before me at the trial, it is obvious there was indeed “a course of conduct” on the part of P which would, when viewed objectively, amount to harassment.

124.  Chronologically speaking, the starting point should be the two disturbing overt acts we already looked at above, ie., P’s publication of the 2018 Messages to D on 17 August 2018. In my view, those two overt acts by themselves amounted to “a course of conduct” for the purposes of the tort of harassment, and all elements of the tort were proven by the evidence as set out above.

125.  The evidence went further.

126.  It was D’s pleaded case, since confirmed by D on oath, that P committed two further sets or series of overt acts on 11[62] and 30[63] March 2019 respectively which, when considered cumulatively, also amounted to a course of conduct for the purposes of the tort of harassment. I say at once I accept D’s sworn oral evidence that these overt acts had been committed by P in the exact manner as described by D before me, and that D suffered harm in the form of emotional distress (and/or not being able to enjoy the Property when D would otherwise be able to) as a direct result of this.

127.  The first set of these further overt acts was pleaded in §28 of D’s AD&CC in this manner: -

“… On 11 March 2019, the Defendant and her daughter/Miss Chung arrived at the Property at around 6:30–7:00 pm after their flight from Australia to Hong Kong. The Plaintiff later returned to the Property at around 8pm. The Defendant and Miss Chung were then forced to leave the Property due to the Plaintiff’s behaviour. The Plaintiff emptied and sprayed two full cans of pesticides in front of the Defendant and Miss Chung inside the Property which is an enclosed space. He taunted the Defendant either to jump off the balcony and fall from 29 levels, or be stabbed with the set of knives in the kitchen, or him emptying the remaining 4 cans of pesticides inside the Property. He also threw clothes pegs at the Defendant. The Plaintiff then offered the Defendant HK$10,400 cash to find accommodation for her stay in Hong Kong. For the safety of the Defendant and Miss Chung, the Defendant accepted the Plaintiff’s offer and left the Property.”

128.  At the trial, Mr Keith Tam, counsel for P, cross-examined D extensively on these events, as he was of course fully entitled to. There is no necessity for me to recite D’s answers on these events verbatim[64]. It is sufficient for me to say I considered the various discrepancies (such as how many cans of pesticides were used) to be wholly immaterial. At the end of the day, I accept D and Nicola did physically leave the Property because of these events, and D did report this matter to the Hong Kong Police. Whilst P’s spraying of pesticides and throwing of clothes pegs inside the Property had never been recorded by video, D’s sworn evidence about the payment of HK$10,400 from P to D, and D’s report to the Hong Kong Police, was fully supported by contemporaneous documents produced at the trial. The details of the overt acts did not matter because quite irrespective of whether P had sprayed 2 cans, 3 cans or 4 cans of pesticides in the Property, I would still have ruled that, bearing in mind the Property was a very small enclosed space, P’s entire course of conduct clearly amounted to harassment for the purpose of the common law tort of harassment. In my view, no reasonable person would have considered P’s entire course of conduct as described by D to be anything other than obviously wrongful acts of harassment.

129.  No reasonable person could have tolerated P’s behaviour. No matter how I look at this, it is crystal clear to me P’s course of conduct was objectively tortious, and P either subjectively knew or ought to have known it was tortious.

130.  The second set of these further overt acts was pleaded in §30 of D’s AD&CC in this manner: -

“On 30 March 2019, the Plaintiff sent a voice message of around 11 minutes to Miss Chung via WhatsApp (“30 March Voice Message”) and urged Miss Chung to relay it to the Defendant. In the voice message, the Plaintiff denied the Defendant’s entitlement to 50% of interest and share in the Property. The Plaintiff intimidated the Defendant with the following messages extracted from the 30 March Voice Message:

仲有一樣野，我隨時歡迎你返嚟。我把鎖就換咗，換咗一把智能密碼鎖加手指模印開咗。少啲伎倆都開唔到隻門。如果你入唔到黎，係人嘅問題。唔緊要，你可以報警。話俾何律師聽俾封律師信我… 另外本大廈可以養寵物。我養條大狗喺屋企。你覺得有問題，叫何律師俾封律師信我… 仲有一樣野，呢一度你返嚟嘅時候晚晚可以大魚大肉。買炭燒烤完之後我燒炭死，立定遺書。如果你有問題，俾封律師信我。我死咗之後，封遺書擺係蘋果日報，俾人睇下、知道下邊個啱與錯。呢度變咗凶宅，我睇你收返幾多錢… 另外仲有一樣野，我間屋企仍然都會買好多清潔用品：有鏹水、有天拿水、有殺蟲水。你覺得有問題，你叫何律師俾封律師信我...”

131.  As I had informed the parties on 23 April 2024[65], I listened to the actual audio recording for the various voice messages being referred to above (“the 2019 Messages”) – all of them. I verified the transcription as accurate, and paid attention to the threatening tone used by P when he was recording the 2019 Messages. In my view, P’s tone was worse than that of a typical local triad member extorting illegal protection money by criminal intimidation. P’s choice of words above, referring to “a big dog”, suicide by burning charcoal, publishing a suicide note in Apple Daily, flammable or erosive liquids, etc., was frightening, disturbing, and extremely sick. No reasonable person would have considered P’s conduct to be anything other than obviously wrongful acts of harassment. No reasonable person could have tolerated P’s behaviour. Again, no matter how I look at this, it is clear to me that P’s course of conduct was objectively tortious. Further, it is also clear that P subjectively knew or ought to have known it was tortious.

132.  On the effect of P’s behaviour on D, D said she felt “isolated, depressed and upset”. She said she suffered from insomnia. She said that on 1 February 2020, she saw a psychologist[66]. I accept all such evidence of D as true and accurate, though the fact that D completely failed to name the psychologist, and completely failed to disclose any document touching on the consultation (not even a copy of the psychologist’s CV or name card) is unacceptable litigation behaviour. I will come back to this.

133.  Again, at the trial, Mr Keith Tam cross-examined D on these events, as he was entitled to[67]. The general theme of the cross-examination was an attack on the paucity, or absence, of any detailed description of the effect of the 2019 Messages on D, or of the reason behind the effect, in D’s AD&CC, and in D’s WS. For my part, I am most concerned about the fact that D said “李振邦係知我驚狗嘅”[68], when this allegation of knowledge was never pleaded in D’s AD&CC, or even mentioned in D’s WS[69]. Since this allegation of knowledge surprised everyone including myself, and as a matter of order of witnesses, P gave evidence before D gave evidence, this “ambush”, whether deliberate or wholly unintentional, seems to me to be unfair to P. No person had specifically put this allegation to P when P was giving evidence. Whilst I accept D’s evidence on this as entirely true, this is still highly material to the next issue, which is whether I should allow D to build a case out of the evidence in this manner, without amending her AD&CC. I will come back to this.

134.  As to the evidence on the mental element vis-à-vis the tort of harassment, it was also overwhelmingly against P. When P was answering questions on this issue under oath, it became crystal clear P did what he did with the deliberate malicious intention to cause harm to D, or alternatively in a reckless manner (not caring whether P’s conduct would cause harm to D)[70]. I find as a fact that all elements of the tort of harassment were present, and the real issue is the pleading point expressly taken by P, to which I now turn.

135.  To start with, throughout the course of the trial, Mr Keith Tam for P, Mr Tommy Cheung for D, and myself, were all alert to the important distinction between cross-examining a witness for background information and credibility issues, and using his answer for unpleaded issues. Mr Keith Tam for P sensibly consented to the former, but strenuously objected to the latter. He made that crystal clear on 24 April 2024[71]. I also made it crystal clear during the same open court exchange that while I allowed Mr Tommy Cheung’s cross-examination questions, I would still hold him (and thus D as his ultimate client) to D’s AD&CC[72]. Accordingly, there was never any concession or confusion of any kind over that whatsoever.

136.  That was a common scenario.

137.  By way of example, in Chang Wa Shan v Esther Chan (2018) 21 HKCFAR 370 [2018] HKCFA 29 [2019] EMLR 10 (§69, per Tang PJ), the second certified question before the Court of Final Appeal was: -

“Question 2: Whether, in a defamation or malicious falsehood matter, the plaintiff and the courts are entitled to use or rely on particulars of extrinsic facts never specifically pleaded in support of a specific innuendo meaning to support that innuendo meaning, on the sole ground that evidence on such extrinsic facts had in any case been received by the trial judge for a different reason or purpose.”

138.  That second certified question was ultimately answered in the negative. The fact that a witness (in that case, one Jonathan Midgley) said something admissible for one purpose would not then make it permissible for the same evidence to be used for a different purpose, such as to raise a case never specifically pleaded in the pleading in question. Unless rectified by an amendment application, a pleading defect remains a pleading defect and, ordinarily speaking, a court of law cannot ignore a pleading defect by pointing at the evidence.

139.  The rationale is trite. As a matter of law, the pleadings define the scope of the parties’ cases. The evidence does not.

140.  The starting point is always what Ribeiro PJ had correctly said in Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 (§§30 to 34), as follows: -

“… A party must raise all the issues he wishes to raise to be dealt with at the trial… The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken… The response of counsel for the plaintiff… that ‘the point was not disputed’ could not be accepted: How could one expect the other side to dispute, or to come ready with evidence to refute, a point that has not been pleaded or even formulated in draft? Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”

141.  The above was plainly correct, and in any case binding on me. It was adopted by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (§§21 to 26), who further observed: -

“… It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which… has been adduced… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues… must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings… the purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice. The retention of the old rules as to pleading as well as the introduction of new provisions over four years ago under the Civil Justice Reform, reinforce this.”

[Emphasis added]

142.  It does seem to me that what D is now trying to do is precisely to raise unpleaded allegations out of the evidence adduced at the trial which according to the authorities above is simply impermissible.

143.  In my view, Mr Keith Tam, counsel for P, was entirely correct when he said at §§121 to 130 of P’s Written Closing that it was completely unacceptable for D to have simply said “D was intimidated”, without any elaboration, in D’s AD&CC. The absence of particulars was shocking. By way of example, if D’s case was that P intended to intimidate D on purpose by referring to “a big dog”, knowing D had a fear of big dogs, that specific intention and that specific knowledge would be highly material particulars (which, if not explicitly pleaded, would take P by surprise) which must be expressly set out in D’s AD&CC. Another good example is D’s allegation of recklessness. In gist, recklessness means “you should have considered this beforehand, but you failed to do so”. A litigant who would like to run a case of recklessness at trial must therefore spell out the word “reckless”, and then spell out what it was that the wrongdoer should have cared about but did not. Using the “a big dog” example above, D could have pleaded something along the lines of “P, having actual knowledge D was afraid of dogs, gained from growing up with D as her brother, deliberately chose to include an otherwise unnecessary reference to “a big dog” in those words, intending to thereby make D feel frightened, emotionally distressed, and/or psychologically hurt, or included a reference to ‘a big dog’ recklessly, not caring whether the reference would cause psychological or other harm to D, in circumstances where such harm should be within P’s contemplation” etc. Nothing like this had been pleaded by D in D’s AD&CC, even though D was represented by solicitors throughout. D’s AD&CC was shockingly defective. It was inexcusable. By filing and serving a defective pleading, and keeping it defective, D ambushed everyone, including myself.

144.  Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) specifically required D to plead particulars of any “condition of the mind”. D was under a statutory duty to plead detailed particulars vis-à-vis her case on (1) intention; (2) knowledge; and (3) mental perceptions and/or feelings. It was “not okay” for D to have kept those particulars entirely to herself at the pleadings stage and then ambushed everyone with such secret particulars at the trial, especially since D knew, or should have known, she would in most likelihood be giving live oral evidence last, so that P would have no opportunity to fairly respond to such secret particulars kept in the mind of D and never spelt out in any pleading anywhere. Good litigation behaviour was more than just telling the truth in the witness box – which D did. It required D to comply with all statutory pleading rules – which D did not.

145.  I have extremely carefully considered whether I should ignore the defects in D’s AD&CC as if Order 18 rule 12 did not exist. In my view, that would be quite wrong. I cannot, and in any case should never, make a mockery of these statutory provisions by ignoring them, or by treating them as optional when they had always been mandatory.

146.  As to fairness to D, in my view there can be no unfairness if I were to rule against D based on my view on the pleading point taken by P, when D was represented by solicitors and could have made an application for amendment at any point during the past years. D could even have made an application for amendment after the evidential stage of the trial, before or during D’s closing submissions, there being no law against it. See Hong Kong Civil Procedure 2024, §§20/8/9 to 20/8/14, the commentary of which I agree and adopt as correct. D chose to keep her pleading defective. There can be no unfairness when that was clearly an informed choice made by D, with the benefit of legal advice. Litigants and solicitors are reminded that a court of law is not, and should never be treated as, a rubbish bin. Litigants and solicitors should not file rubbish into court. For solicitors in particular, as DHCJ Herbert Au-Yeung (as His Lordship then was) had aptly stated in JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (at §29), their duty to the court itself prevails over their duty to their client. Filing defective pleadings into court and keeping them defective on purpose would adversely affect the court’s duty to administer civil justice efficiently and effectively and is unacceptable. A litigant who, by herself or via solicitors, chose to file defective pleadings into court and keeping them defective on purpose cannot complain about the matter being decided against her accordingly.

147.  All things considered, I dismiss D’s tortious counterclaims, on the basis that whilst the evidence received by me strongly suggested that P committed the tort of intimidation and the tort of harassment, the law does not allow D to raise an unpleaded issue, or build an unpleaded case, out of the evidence, in the manner as D is now trying to do.

148.  I should add that Mr Keith Tam, counsel for P, no doubt acting responsibly and/or out of an abundance of caution, did cross-examine D on the issue of quantum[73]. In gist, Mr Tam suggested to D that the emotional distress suffered by D, if any, must be rather minor, otherwise (1) D would have sued P immediately, without waiting for P to sue her first; (2) D would have seen her psychologist more than once and asked him/her to prepare a full expert report on D’s psychological condition; and/or (3) D would have taken her disclosure obligations substantially more seriously and disclosed her referral and appointment letters, etc., in these proceedings. In my view, there is no real necessity for me to go into the details of D’s responses in a public judgment. Putting it very briefly, whilst I am fully satisfied, on the evidence, that D suffered some emotional distress and psychological harm by reason of P’s unacceptable behaviour, in the manner as D had described to me from the witness box and whilst under oath, there must also be some truth in Mr Tam’s suggestion that the degree of harm suffered by D should not be as serious as the many cases on quantum cited to me as comparables, summarized by Mr Tommy Cheung at §121 of his written closing which I diligently considered. In these circumstances, even if I were wrong on the pleading point, even if I should have entered judgment against P based on the two tortious causes of action, I would have awarded nothing more than nominal damages (ie, HK$1, instead of a “starting point” of HK$200,000 as suggested by Mr Tommy Cheung) to D, a real option which Mr Tommy Cheung, counsel for D, had accepted would be “agreeable”[74]to D.

149.  Furthermore, given D’s grave drafting defects and disclosure shortcomings in this legal action, considered together with P’s behaviour generally, bearing in mind the need for me to consider the parties’ conduct under Order 62 rule 5(2) of the Rules of the District Court (Cap 336H) and the authorities helpfully summarized in Hong Kong Civil Procedure 2024, §62/5/6, whether I had decided to enter judgment against P, or to dismiss D’s counterclaims, my costs order would be identical – no order to as costs (that is to say each party should bear his or her own costs).

150.  Having dismissed D’s tortious counterclaims for the reasons set out above, the next and last issue which I need to deal with is relief, to which I now turn.

Issue 3 – Relief?

151.  In D’s AD&CC, D prayed for the following reliefs: -

“(1) A declaration that the Defendant holds 50% of shares and interests of and in the Property legally and beneficially;

(2) An order for sale of the Property pursuant to s.6 of the Partition Ordinance (Cap 352);

(3) Damages to be assessed by the Court for:

(i) tort of harassment or tort of intimidation;

(ii) breach of the Common Understanding for excluding the Defendant from staying in the Property;

(iii) breach of the Common Understanding or alleged Common Intention in the event that the Property had been let to a third party;

(4) Occupational rent to be assessed by the Court from August 2018 to the date on which the Plaintiff moved out of the Property or the date which Property had been let to a third party;

(5) Half of the rental income that the Plaintiff received from letting the Property;

(6) Further or other relief that this Court shall deem fit;

(7) Interest on (3) as determined by the Court, at such rate and for such period that this Court shall deem fit; and

(8) Costs.”

152.  Any lawyer worth his salt should be able to see that if we were to put aside the declaration relief for the time being, all other reliefs sought, as framed above, are problematic. The drafting defects in this specific part of D’s AD&CC are just as shocking as those in other parts of D’s AD&CC so Mr Tommy Cheung, counsel for D, should be praised for making it clear he would be “sensible” at the end of the day, abandoning the allegation of “leasing out” altogether, etc.[75]

153.  The first relief prayed for is the easiest. I do hereby grant this declaration: -

“It is hereby declared that the residential unit known as “Unit D, 29^th Floor, Block 1, La Costa, No. 8 Po Tai Street, Shatin, New Territories” (the “Property”) registered in the Land Registry as being owned by Li Chun Pong Raymond (李振邦) (“P”) and Li Maggie Hang Yung (李杏容) (“D”) as tenants-in-common, each having a 50% interests, was since October 2005, and is currently, being owned by P and D as tenants-in-common, each having a 50% interests, both at law and in Equity.”

154.  For the second relief prayed for, up to 23 April 2024 when the trial started, D’s legal team had completely failed to plead, or lodge by way of submissions, their proposed directions for sale. I found this shocking. I actually had to, and I did, issue a written requisition, explicitly drawing the parties’ attention to what was declared by Recorder Joseph Fok SC, as Fok PJ then was, in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825, and my own previous decision in 3 Sing Credit Limited v Cheng Man Yee [2023] HKDC 936, asking for clarifications. Worse still, D’s solicitors had simply ignored Rule 4 of the Partition Rules (Cap 352A), which read: -

“… In any proceedings under [the Partition Ordinance (Cap 352)] a copy – (a) of every pleading and amended pleading filed in Court; (b) of every affidavit filed in Court; (c) of every answer to interrogatories and of all particulars furnished or filed in Court, whether pursuant to an order of the Court or otherwise; (d) of every interlocutory application and every order made thereon filed in Court; and (e) of every notice including notices of appeal filed in Court, shall forthwith after such filing or furnishing be served or caused to be served on the Director [of Lands] by the party on behalf of whom such document is filed or furnished.”

[Emphasis added]

155.  The service requirements under Rule 4 of the Partition Rules (Cap 352A) were mandatory (as opposed to optional) so (saying it politely) I have difficulties understanding why D and D’s solicitors appeared to have this fundamental misconception that they could somehow ignore their strict statutory duties. D and D’s solicitors could not choose to ignore their strict statutory duties – there was no such choice available or open to them.

156.  For D’s solicitors, their failure or refusal to comply with Rule 4 of the Partition Rules (Cap 352A) at any point in time prior to my written requisition was in my view another obvious breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve competently, in a conscientious, diligent, prompt and efficient manner. Delaying the service of court documents on the Director of Lands by over 4 years was obviously not “prompt” service, and was inexcusable.

157.  As to P and P’s solicitors, I should record that at §43 of their Amended Reply and Defence to Counterclaim, they denied D’s entitlement to an order for sale, which was absurd. As had been declared by Recorder Joseph Fok SC, as Fok PJ then was, in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825, and as I had myself said in 3 Sing Credit Limited v Cheng Man Yee [2023] HKDC 936, Ford World Development Ltd v The Estate of Yau Tung [2024] HKDC 772, Konew Capital International Ltd v Chen Bo [2024] HKDC 802, etc., in Hong Kong, any co-owner of land has a basic legal right to rid herself of “the shackles of co-ownership”, without having to prove any “fault” or “basis” of any kind whatsoever. We do not “chain” people to each other forever, just because for whatever reason they became co-owners of land. As far as land ownership is concerned our laws recognize “no fault divorce”. It was only on 22 April 2024, the day before the start of the trial, that Mr Keith Tam, on behalf of P, eventually made it clear by way of a speaking note that P shall have no objection in principle to the Property being sold, subject to the usual submissions that we should insert appropriate directions within the directions for sale to protect the best interests of all stakeholders, etc.

158.  No party had ever filed or lodged any valuation report. P and D did not even see fit to produce a screenshot from one of those completely free property valuation websites managed by local banks. I knew of 8 such websites. They show up on Google Search. P and D did not print anything from any of them. I have no idea why they did not. I received no assistance from the parties or their lawyers in setting a minimum price.

159.  To be fair to the parties and their legal representatives, on my dissatisfaction with the state of affairs as it stood before the start of the trial being made known to them, they moved quickly to remedy the situation in good faith. They might have done the best they could in the circumstances, which was appreciated by me.

160.  All in all, after some tribulations, I believe I am able to, and I do hereby, make the following order for sale:-

(1)  D shall duly file and serve, within 28 days from today, affidavits proving the position taken by the Director of Lands in relation to this legal action, and the sale value of the property known as “Unit D, 29^th Floor, Block 1, La Costa, No. 8 Po Tai Street, Shatin, New Territories” (“the Property”);

(2)  Subject to D proving, by affidavits, that the Director of Lands had no objection to an order for sale being made, the Property be sold by public auction or private treaty in the open market pursuant to Section 6 of the Partition Ordinance (Cap 352), at a price above HK$6 million;

(3)  The conduct of the sale of the Property be entrusted and committed to a firm of Hong Kong solicitors as shall be agreed between the parties in writing or appointed by any Judge of the District Court by paper application and paper disposal (“the Firm”), subject to this court order and the directions of this court;

(4)  P shall, with 24-hour prior notice, facilitate the viewing and inspection of the Property by each potential buyer;

(5)  P shall deliver vacant possession of the Property within 28 days of a formal sale and purchase agreement being signed by a potential buyer;

(6)  The parties shall deliver all title documents to the Firm within 14 days of a formal sale and purchase agreement being signed by a potential buyer;

(7)  The parties shall perform such acts including executing any document as may be necessary to give effect to this order;

(8)  In the event of a party neglecting or refusing to execute any document in respect of the Property within 7 days of the service of this order on that party, or if any party cannot after reasonable inquiry be found, any solicitor, appointed under this order by any Judge of the District Court, by paper disposal, shall be authorized to execute any and all such document(s) in place of the defaulting person under or pursuant to Section 38A of the District Court Ordinance (Cap 336) and such execution shall for all purposes be valid and effective as if the same was performed by the defaulting person himself/herself;

(9)  P shall continue to make all mortgage loan re-payments and pay for government rents, taxes, rates, management fees and other outgoings affecting the Property until the completion of the sale of the Property;

(10)  D’s solicitors shall draw up, file and serve this order;

(11)  The proceeds of the sale of the Property shall in the first instance be received and stakeheld by the Firm and then applied by the Firm in the following manner and order of priority:-

(a)  In discharge of all rates, government rents, taxes, management fees and all other similar charge and outgoings due and affecting the Property;

(b)  In payment for the discharge of all encumbrances including all of the costs and/or disbursements for discharging such encumbrances;

(c)  In payment of all reasonable costs and expenses of the sale, including commission of estate agents not exceeding 1% of the transaction price as well as the legal costs, charges and disbursements not exceeding HK$25,000.00 for such sale;

(d)  The remaining net balance to be split into 2 equal shares:-

(i)  For the first 1/2 share, to P, and if P could not be located, to be paid into court for the credit of P; and

(ii)  For the second 1/2 share, to D, and if D could not be located, to be paid into court for the credit of D; and

(12)  There be liberty to apply, including for clarification or alteration of any of the above, which application can be determined by any Judge of the District Court.

161.  For the third relief prayed for (ie, damages), it is dismissed.

162.  Firstly, on the tort of harassment and the tort of intimidation, such claims had been dismissed by me for the reasons set out above.

163.  Secondly, for exclusion of D from the Property, D’s AD&CC was fatally defective. There was no plea as to just how many days (if any at all) would D be residing in the Property from August 2018 onwards but for P’s wrongful acts. To put this in context, D resided in Sydney Australia most of the time, and most people would not travel during the Covid period. As to the pesticides incident in 2019, it happened, but on D’s own pleaded case (§28 of D’s AD&CC) D accepted HK$10,400 in cash as compensation already, after which D’s loss must be treated as compromised and became zero. Alternatively, if D felt that she had been excluded from the fruits of the purchase of the Property she could have simply taken out an originating summons at any point in time and asked that the Property be sold pursuant to Section 6 of the Partition Ordinance (Cap 352) forthwith, and with the proceeds being held in a solicitors’ account and invested (eg being put in a fixed deposit account earning interest at 5% per annum, compounded once every 3 months), pending resolution of the dispute on percentage. She did not have to sit at home in Sydney Australia and do absolutely nothing about this. Looking at D’s AD&CC, and all of the evidence adduced at the trial, I can see no recoverable causative loss being properly pleaded or properly proven, and I award none. Similarly, D’s speculation that the Property had been lent to a third person was never proven by D, and had been effectively abandoned. Nothing should be payable in relation to that. The amount of damages payable by P is zero.

164.  For the fourth relief prayed for (ie, occupational rent), it must be dismissed as completely misconceived. It is D’s own pleaded case, and sworn evidence, that she had agreed P could reside in the Property without any requirement to pay rent to her (§11.3.3 of D’s AD&CC). D cannot turn around and suddenly say, without notice, that she would like to claim what she had agreed she should never claim.

165.  For the fifth relief prayed for (ie, “half of the rental income”), it must be dismissed as unproven. D adduced zero evidence that P received any rent from any person. Half of zero is zero.

166.  As to costs, the starting point must be Pacific Ace Finance Ltd v Delay & Anor [2023] 4 HKC 424 [2023] HKDC 611 (§28, DDJ Kenneth KY Lam), where I summarized the general legal position as follows:-

“The award of costs in District Court civil actions is governed by Order 62 of the Rules of the District Court (Cap 336H) (“RDC”), which is substantially the same as Order 62 of the Rules of the High Court (Cap 4A). The most important principle is that a judicial officer has a wide discretion on matters concerning costs, but the discretion must be exercised judicially. See, eg, HKCP 2023, §62/2/6. Usually, a judicial officer would start from the assumption that ‘costs should follow the event’, which is to say the losing party should pay for the legal costs incurred by the winning party, not because there is such a rule, but because in the vast majority of scenarios that would be the fair, just and most appropriate order.”

167.  In terms of “event”, we plainly have a mixed outcome in this matter, with P winning some of his arguments, and D winning some of her arguments. Each party had some victories, and some defeats. On the facts of this case, looking at the way each of the parties had been contesting this absurdly acrimonious dispute, I should, and I hereby, pay special attention to Order 62 rule 5 of the Rules of the District Court (Cap 336H) which, so far as material, says: -

“Special matters to be taken into account in exercising discretion (O. 62, r. 5)

(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account… (e) the conduct of all the parties…

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (b) the manner in which a party has pursued or defended his case or a particular allegation or issue; (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and (d) conduct before, as well as during, the proceedings.”

168.  As one can gather from everything I had set out above, in my view, P’s litigation conduct was horrible. He lied to me under oath, which was potentially a crime punishable by 7 years’ imprisonment under Section 31 of the Crimes Ordinance (Cap 200). On his pleadings he had denied the undeniable, such as D’s clear and obvious legal entitlement to rid herself of “the shackles of co-ownership”, at a point in time when what was declared by Recorder Joseph Fok SC in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825 had become trite and well-known. The list of P’s litigation misconduct can go on forever. However, D’s litigation conduct was in fact also horrible. Whilst D was perfectly honest when she gave evidence under oath, and indeed I accepted the entirety of her oral evidence as true, she did file a defective pleading, namely, D’s AD&CC, into court, used it, and then ambushed everyone, including myself, with fresh allegations whilst giving live oral evidence. Further, D was plainly guilty of non-disclosure, having buried important referral and appointment letters which would have shown the names, addresses and telephone numbers of her GP and/or psychologist in Australia, plus details of her counselling session. In such circumstances the only fair and reasonable costs order for the whole matter should be “no order as to costs” – thus requiring each party to bear his/her own costs in this litigation. I hereby make such an order accordingly.

169.  The above is an Order Nisi. Unless a party takes out a formal inter partes summons within 14 days from the date hereof to vary the Order Nisi, the Order Nisi shall become absolute without further order. Since the Order Nisi is “no order as to costs”, there is no necessity for me to certify the attendance of counsel. However, I must and I do acknowledge both Mr Keith Tam, counsel for P, and Mr Tommy Cheung, counsel for D, had been extremely helpful to me, for which I am most grateful. Each of them added substantial value to his own legal team, and to my efficient administration of civil justice. I would have certified their attendance before me as proper, if not essential, had I ordered any inter partes taxation for this action.

170.  For the avoidance of doubt, any relief claimed for by any party that has not been specifically dealt with above (eg, the entirety of P’s claim in P’s ASoC) is hereby dismissed by me.

Othes Matters

171.  As I had told counsel for both parties on 30 April 2024[76], I do not have a magic wand to make the parties like each other, but I hope things between them would not escalate. Siblings should never have to sue each other, certainly not in this manner. And as I had stated at the beginning of this judgment, by the time P and D gave evidence before me in April 2024, they were aged 59 and 63 respectively. It is regrettable that P and D seemed to have become so consumed by their unhealthy mutual animosity that they lost their good sense. It is my hope that this judgment can go some way to bring some closure to the parties, so that they can simply sell the Property immediately, divide the proceeds, and move on. There are more important things in life. I hope both parties can try to understand that.

172.  I do thank both counsel for their most able assistance.